You retain a lawyer in year 1 to help you in a trusts and estates matter. The lawyer assists you for ten years. In year 12, new lawyer identifies that the first lawyer you hired did a bad job and the lawyer’s substandard performance of work resulted in large otherwise avoidable tax liability. New lawyer sues old lawyer on your behalf in year 13.
The statute of limitations is six years.
Question: Is the malpractice claim barred by the statute of limitation?
According to analysis by Hennepin County District Court Judge Phillip Bush, the answer would appear to be, “No.” Judge Bush adopted the “continuous representation doctrine.”
According to analysis by a three-judge panel in a recent unpublished Minnesota Court of Appeals decision, the answer would appear to be, “Yes.” The panel rejected the “continuous representation doctrine.”
Maybe this is an area calling for attention by the Minnesota Supreme Court?
(I would suggest that legal work in the context of trust and estate work might be the most thorny and difficult in which to imagine invoking the “continuous representation doctrine” because, I believe, these can be engagements with extremely long “tails” (maybe even multi-generational) so the doctrine seems particularly threatening for trust and estate lawyers.)
This question, incidentally, is one of the many questions that judges have to answer which cannot be answered by objective application of established rules. Any judge who decides this question is, in a sense, an “activist” no matter how she rules because her decision will be based on her own view of the better rule rather than some mechanistic recipe of decision-making. Judging may be one of the safest possible jobs from replacement by machine.