• October 1, 2018

Ouroboros: The Self-Devouring Snake

Update (October 1, 2018): Sometimes, clients push their lawyers to take extreme positions, “scorched earth tactics,” or a “take no prisoners” strategy.

Our ethics rules seem to “punt” on the question of who bears ultimate responsibility as between the lawyer and the client for over-the-top tactics. This seems appropriate. Lawyers are advocates. Lawyers are their clients’ agents. It’s a unique relationship and a bright-line rule of responsibility for litigation strategy just won’t work.

But, if you have litigious clients and you do their bidding, you might be the next defendant in the cross-hairs. Who will be held responsible (and liable) for scorched earth tactics that back-fire?

Crosshairs by Trevor Tinker (Flickr Creative Commons)

This comes to mind in a legal malpractice claim, which we only recently caught wind of, brought against distinguished trial lawyers from Dorsey & Whitney, LLP by an unhappy Dorsey ex-client. (The amended complaint is here.)

It seems to us that the malpractice plaintiff, Mr. Nielsen, ordered his extraordinary and elite legal ninjas into battle and, when they attacked as instructed and were decisively repelled (at a huge cost borne by many, including Mr. Nielsen, himself, his adversaries, and the court system), Mr. Nielsen fired them. Then he sued his soldiers for following his orders.

Of course, Mr. Nielsen’s position, we have to assume, is that we have the narrative all wrong. Presumably, we can summarize his position to be that he sought sage legal advice from highly accomplished and distinguished lawyers and, instead, he was whipped up into a litigious frenzy by lawyers more eager to bill hours than to serve their clients effectively. (This narrative, incidentally, is hard to square with Mr. Nielsen’s long history of litigiousness.)

In our view, the bottom line for Minnesota Litigator readers is that aggressive lawyering exposes lawyers and law firms to significant risk (legal, financial, and reputational).

If a client goads his lawyers on to take very aggressive (and expensive) positions, the lawyers best have that client influence well-documented and, even if they do, they might want to consider the risk of “buyer’s remorse” if the costly strategy fails.

Original post (January 9, 2013):  Originally, “blowback” was CIA internal coinage denoting the unintended, harmful consequences—to friendly populations and military forces—when a given weapon is carelessly used.

A Washington County jury found real estate developer, Jeffrey L. Nielsen, guilty of a charge of disorderly conduct arising out of allegations that he took down two campaign lawn signs for aspiring city councilman, Steve Bohnen, (Grant City Council) in early October, 2010 (Grant, Minnesota, population 4,096 in the 2010 Census).  (Bohnen won anyhow.)  Of course, this is normally not the kind of thing anyone would make a federal case out of, much less a federal case brought by the alleged sign thief.  Seriously.  This dispute was (and two years later continues to be) far from normal.

Steve Bohnen, represented by Stillwater, Minnesota lawyer, Robert Hill, is bringing a lawsuit for malicious prosecution and abuse of process against the law firms of Dorsey & Whitney, L.L.P., Foley & Mansfield, and lawyers from these firms, George Eck and Thomas Pahl, in connection with their representation of Mr. Nielsen in what appears to have been a series of aggressive and unsuccessful legal actions brought on Nielsen’s behalf against Bohnen and others.

What happened to the role of lawyer as wise counselor?  If we assume that the allegations in Stephen Bohnen’s complaint are true (and they appear to be supported by court hearing transcripts and published decisions), was there sage advice in Nielsen’s corner?  Six-figure sanctions have already been awarded.

[Editor’s note: Mr. Bohnen’s lawsuit against Dorsey & Whitney and others based on Mr. Nielsen’s lawsuit against Mr. Bohnen was settled. See Bohnen v. Dorsey & Whitney, LLP, Court File #A17-0556, 2017 Minn. App. LEXIS 89 (June 13, 2017).]

[Editor’s note #2: Full disclosure: Seth Leventhal, the founder/editor of Minnesota Litigator is a former Dorsey & Whitney partner.]

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