In a post last week, Minnesota Litigator post pointed out the challenge faced when trying to hold lawyers accountable for breaching professional standards under Minnesota law: the burden of coming forward with actual, admissible, “hard” evidence, to prove that something that never happened would have happened if the lawyer-defendant had met the applicable standard of care in the first place.
As if that were not hard enough, here’s an ugly flip-side of the same coin: imagine infamous attorney malpractice titans whom we will call Dewey Cheatam & Howe (DC&H), taking on completely hopeless cases for unwitting clients, spending long hours and billing many dollars to take on the loser cases and losing them spectacularly (and getting paid well all along). Malpractice? I would hope so. But the “but for” causation requirement, if read narrowly, would suggest otherwise. That is, the subsequent malpractice action against DC&H could not hope to prove, “But for the malpractice, Client would have won her case.” The whole point of a malpractice case would be exactly the opposite. The malpractice would have been bringing the case in the first place.
The better rule, I would suggest, is articulated in Jerry’s Enterprises v. Larkin Hoffman Daly & Lindgren, Ltd.: “but for defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result obtained.” With the rule understood in this way, the DC&H scenario would state a claim for professional malpractice because, “but for defendant’s conduct, the plaintiff would have been better off than the result obtained.”
The only problem is that the Jerry’s Enterprises case is a “transactional” case. The Minnesota legal malpractice defense bar argues that the holding in the case is limited to “transactional” malpractice and so, in alleged legal malpractice in the context of litigation, they argue, the holding has no application.
Insightful readers may chime in, “Hold on, maybe the legal malpractice case in the DC&H scenario would be dead-on-arrival, but the client would still have a claim for unjust enrichment, fraud, breach of contract, or some other claim at least to get her fees back, paid for DC&H’s substandard legal work.” The problem there is that there are quite a few cases standing for the proposition that one cannot recast professional malpractice actions as these alternatives; these claims are often held to alternative articulations of professional malpractice actions (as in this case) and, therefore, some courts have held they are subject to the same standards and elements as if brought as claims for professional malpractice.
It is not clear whether the plaintiffs in this case have viable claims against the defendants at all. It does seem, however, that they might not be getting their money’s worth (even if they have not spent all that much). Plaintiff’s counsel has had run-ins in the past for claims deemed to be frivolous. How is it not professional malpractice to bring lawsuits composed of “allegations and other factual contentions [that] have no evidentiary support, and are . . . a substantial departure from acceptable litigation conduct”?