You might think of any litigation, civil or criminal, as a layer of law blanketing an underlying set of facts. If you think of litigation as layered in this way, you can easily imagine situations where a lawyer might be implicated in two layers.
For example, a lawyer might advise a client about the meaning of a contract and then he might later defend the client when the client is sued for breaching the contract. This can get complicated and messy.
The last thing you want is to have your lawyer examining himself on the stand at trial. This never goes well…(Seriously, there is some risk that your lead counsel could be disqualified if she is a material witness to the underlying facts and there are potential ethical implications when a lawyer is defending client conduct that was based on his own legal advice.)
The Minnesota Supreme Court granted Sysdyne’s petition for review of the Minnesota Court of Appeals decision affirming Hennepin County District Court Judge Philip D. Bush‘s decision in favor of Brian Rousslang.
Fredrikson & Byron attorney, Joseph Sokolowski was Rousslang’s lawyer who advised him and his prospective employer, Xigent, about the applicability of Rousslang’s non-competition agreement with Sysdyne, Rousslang’s former employer, and then Sokolowski served as Rousslang’s lead trial counsel defending against the claims brought by Sysdyne.
From the public record, however, it is unclear what aspect of the Court of Appeals decision was raised in Sysdyne’s petition (why does our court system allow petitions for review to be sealed?). We’ll just have to wait and see whether it is this aspect of the case that caught the Supreme Court’s attention or another part.
[REVISED as of noon, 5/30/14] Here is Sysdyne’s petition for Supreme Court review. The introductory statement in the petition is forceful. Can an attorney’s advice, which we assume to have been erroneous for the purpose of argument, immunize competitors from claims of tortious interference?
This goes to the heart of the lawyer/layer issue. If a lawyer can immunize a client from liability simply by giving advice, even wrong advice, what would the lawyer’s ethical duty be to his client, who wants to be advised that a contract is unenforceable (whether it is unenforceable or not). This is dizzyingly circular.