• October 30, 2009

An attorney, purporting to act on behalf of a client, sends correspondence that a disappointed business entity blames for the collapse of an important business transaction.

The business entity (let’s call it PureChoice) brings suit against the son of the purported client — alleging that the client was not competent, that the son was acting as a kind of Svengali. There is evidence to support that client was cognitively impaired at the time and going downhill (he died soon thereafter).

But, if the lawyer (Ravich), identified his client as Ken Macke (the impaired client), if Ken Macke identified his lawyer as Ravich, can PureChoice get to a jury to determine whether, really, it was Ken Macke’s son, Jeff Macke, calling the shots and can PureChoice bring a suit against Jeff Macke for statements in the lawyer’s letter purportedly on behalf of Ken Macke, his professed client? (The facts are complicated by the fact that PureChoice released the Macke parents from claims in an earlier settlement.)

U.S. District Court Judge Donovan Frank found that, “No reasonable juror could conclude that Ravich was not representing or acting on behalf of Kenneth Macke when the allegedly fraudulent statements were made….In addition, no reasonable juror could conclude that Ravich was representing or speaking on behalf of Jeffrey Macke.”

On October 22, 2009, the U.S. Court of Appeals for the Eighth Circuit (Judges Loken, Hansen and Melloy) heard the appeal of summary judgment in favor of defendant on claims of fraud and tortious interference.

Things are not looking good for PureChoice, the appellant, but the case does touch on an enormously complicated, delicate, and challenging issue: the attorney-client relationship, control, and competence. (Note Minnesota Rule of Professional Conduct 2.1, Advisor, comment [4]: “Family matters can involve problems within the professional competence of psychiatry, clinical psychology, or social work….Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.”)

PRACTICE POINTER SIDE NOTE: Also on appeal were privilege determinations in regard to documents submitted to the trial court judge for review in his chambers. There were challenges making this part of the record submitted to the Court of Appeals for review and, in fact, the panel expressed frustration even suggesting that the issue was waived for failure to provide required documents as part of the record. These documents appear to have been filed with the District Court three days before oral argument before the Court of Appeals (more than seven months after the rest of the record on appeal).

Leave a Reply

Your email address will not be published.