IN COURT OF APPEALS
James L. Noske,
Joseph S. Friedberg, et al.,
Hennepin County District Court
File No. 04-19196
Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, 234E Roseville West, 2277 Highway 36 West, St. Paul, MN 55113-3830 (for appellant)
Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402-4217 (for respondents)
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.
1. To prevent dismissal of a malpractice action against a professional, the safe-harbor provision of Minn. Stat. § 544.42, subd. 6(a) (2004), allows a plaintiff to replace a deficient affidavit of expert review with one that complies with the statutory requirements.
2. A legal-malpractice action may not be predicated on a claim that an attorney negligently failed to pursue a particular trial strategy in the exercise of professional judgment.
3. A legal-malpractice claim based on an allegation of professional negligence may not be predicated on acts constituting fraud or intentional misrepresentation.
appellant petitioned the federal district court for a writ of habeas
corpus. The federal district court ruled
that respondent’s assistance was constitutionally deficient because his conduct
breached his duty of consultation with appellant and fell below an objective
standard of reasonableness. Noske v. Stender, No. 4-93-518, slip op.
at 22 (D. Minn. Jan. 8, 1999). Additionally,
the federal district court found that the introduction of a self-defense theory
to the jury had a reasonable probability of altering the outcome of the case.
September 2001, appellant filed a legal-malpractice action against respondent in
state district court, asserting negligence, breach of contract, and
misrepresentation. The district court
dismissed the claim as barred by the statute of limitations. This court reversed and remanded, and the
supreme court affirmed, holding that Noske’s cause of action did not accrue
until he was granted habeas corpus relief in 1999. Noske
v. Friedberg¸ 656 N.W.2d 409 (Minn. App. 2003), aff’d, 670 N.W.2d 740 (
On remand to the district court, respondent moved to dismiss on the ground that appellant’s affidavit of expert review by Michael Scherschligt, a Hamline University School of Law professor, was inadequate. Respondent also moved for summary judgment on the merits. Appellant opposed the motion and, in response to the alleged deficiencies, submitted the affidavit of John Koch, an experienced criminal-defense attorney. The district court denied the motion to dismiss and allowed appellant to submit the substitute affidavit of expert review by Koch, but the district court granted summary judgment dismissing appellant’s malpractice claim. Appellant filed this appeal, and respondent filed a notice of review.
1. Did the district court abuse its discretion by ruling that appellant’s first affidavit of expert review was deficient because the affiant was not qualified as an expert in criminal law?
2. Did the district court err by allowing appellant to submit a substitute affidavit of expert review under the safe-harbor provision of Minn. Stat. § 544.42, subd. 6(a), to replace an affidavit by an expert who lacked the necessary qualifications?
3. Did the district court err by granting summary judgment dismissing appellant’s legal-malpractice claim based on a determination that respondent was entitled to judgment as a matter of law?
When bringing a malpractice action against a professional such as a lawyer, if expert testimony will be used to establish a prima facie case, the plaintiff must serve the opponent with two affidavits. Minn. Stat. § 544.42, subd. 2 (2004). The first is an affidavit of expert review and the second is an affidavit of expert identification. Minn. Stat. § 544.42, subds. 3 (affidavit of expert review), and 4 (affidavit of expert identification) (2004). Only the affidavit of expert review is at issue in this case.
The affidavit of expert review is
usually submitted with the pleadings and is generally drafted by the
plaintiff’s attorney. See Minn. Stat. § 544.42, subds. 2, 3. It must state that the facts have been
reviewed by the attorney with an expert “whose qualifications provide a
reasonable expectation that the expert’s opinions could be admissible at trial”
and that, in the expert’s opinion, “the defendant deviated from the applicable
standard of care and by that action caused injury to the plaintiff[.]”
Appellant argues that Scherschligt
had the required qualifications, citing his expertise in attorney ethics. He contends that, rather than holding that Scherschligt
was not qualified as an expert in the relevant field, the district court should
have allowed the jury to determine the value of his testimony. See
Riewe v. Arnesen, 381 N.W.2d 448, 458-59 (Minn. App. 1986) (upholding
district court decision that expert was qualified to testify), review denied (
Respondent argues that the district
court erred by allowing appellant to submit a substitute expert-review
affidavit, claiming that the safe-harbor provision of Minn. Stat. § 544.42, subd.
6(c) (2004), applies only to inadvertent drafting errors and does not permit
substitution of experts. Respondent
raises a question of statutory construction, which we review de novo. Sorenson
v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (
Initially, we observe that subdivision 6(a), not 6(c), applies to an affidavit of expert review. Subdivision 6(a) provides that failure to serve an affidavit of expert review “within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal.” Minn. Stat. § 544.42, subd. 6(a). The affidavit requirement “cannot be met by a witness not reasonably expected to provide an admissible expert opinion at trial.” Teffeteller, 645 N.W.2d at 426-27
The district court held that the “safe-harbor” provision of the statute allowed appellant to submit a proper affidavit from a qualified new expert to replace the defective affidavit and thereby satisfy the disclosure requirement of the statute. The district court ruled that the substitute affidavit by John Koch, an experienced criminal-defense attorney, met the statutory requirements.
Respondent argues that the district court erred by allowing Koch’s affidavit, claiming that the safe-harbor provision is intended to apply to inadvertent drafting errors, not to a party’s failure to submit an opinion by a qualified expert. The crux of respondent’s argument is that subdivision 6(a) is limited to curing claimed deficiencies in an affidavit previously submitted and that the statute prohibits submission of a substitute expert-review affidavit that identifies a new expert.
For two reasons, we conclude that the “safe-harbor” provision of subdivision 6(a) does not prohibit the timely submission of a second affidavit of expert review that identifies a substitute expert witness to replace an expert disclosed under subdivision 3, after the district court has concluded that the initial affidavit is inadequate, provided that the new affidavit otherwise complies with the disclosure requirements of subdivision 3. First, subdivision 6(a) does not explicitly prohibit a party from substituting one expert with another as long as the other provisions of the statute are satisfied. Here, the other provisions of the statute were satisfied.
Second, we conclude that subdivision
4(b) provides the court with discretion to permit a second affidavit of expert review
that identifies a new expert. It states,
“The parties by agreement, or the court for good cause shown, may provide for
extensions of the time limits specified in subdivision 2, 3, or this
subdivision. Nothing in this subdivision
prevents any party from calling additional expert witnesses or substituting
other expert witnesses.” Minn. Stat. §
544.42, subd. 4(b). In the first
sentence, the court is given the discretion to extend the time limits, inter alia,
for affidavits of expert review required by subdivision 3. The second sentence provides that subdivision
4 does not prevent a party from “substituting other expert witnesses.”
Respondent does not challenge Koch’s qualifications as an expert or the adequacy of his expert-review affidavit. Therefore, the district court correctly concluded that the substitute affidavit was properly submitted under Minn. Stat. § 544.42, subd. 6(a).
that the district court erred by dismissing his legal-malpractice claim,
contending that respondent was professionally negligent. On review of summary judgment, we determine
de novo whether there are any genuine issues of material fact and whether the
district court erred as a matter of law.
STAR Ctr., Inc. v. Faegre &
Benson, 644 N.W.2d 72, 76 (
To prevail on a legal-malpractice claim, a plaintiff must establish four elements:
(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages; [and] (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.
Jerry’s Enters., Inc. v. Larkin, Hoffman,
Daly & Lindgren, __ N.W.2d __, __, 2006 WL 871166, at *3 (
A. Attorney-client Relationship
The parties do not dispute that an attorney-client relationship existed. The first element of a legal-malpractice claim is therefore satisfied.
B. Acts Constituting Negligence
The second element requires a
showing of acts constituting negligence or breach of contract.
Initially, appellant argues that the
determination by the federal district court in the habeas corpus proceeding
satisfied the second element of this legal-malpractice claim. The habeas court concluded that counsel
breached the duty to consult and intentionally misled appellant into believing
that he could assert self defense at trial; that this prejudiced appellant’s
case; and that this conduct violated his constitutional right to effective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984). Appellant asserts that respondent’s actions require
immediate reversal. See
Appellant’s negligence claims are set forth in the affidavit of John Koch. Appellant’s first claim of negligence is that respondent breached the duty to consult by failing to assert self defense as appellant had directed. (Koch Aff. ¶¶ 11-12). Respondent argues, and the district court agreed, that the professional-judgment rule bars appellant’s claim.
The parties do not dispute that appellant discussed self defense as a trial strategy with respondent, that appellant directed respondent to assert that defense, and that respondent agreed to assert the defense. Nor do the parties dispute that respondent failed to assert the defense because respondent concluded that it was risky to do so and that the better strategy was to argue that the state could not prove, as the complaint alleged, that appellant fired “at” his victims.
But a client cannot prevail on a
legal-malpractice claim based on a lawyer’s failure “to pursue a particular
strategy.” See Dziubak v. Mott, 503 N.W.2d 771, 776 (
We conclude that respondent’s failure to assert self defense was a deliberate trial strategy resulting from the exercise of professional judgment. Even if respondent’s decision reflected an error in judgment, it does not rise to the level of malpractice.
Appellant further argues that
the American Bar Association (ABA) standards support his claim that respondent
breached his duty to consult by not asserting the defense. See
Appellant’s second claim of
negligence is that respondent breached his duty to consult by deliberately and
intentionally deceiving appellant about his intent to assert self defense. (Koch Aff. ¶ 11). Koch concludes, inter alia, that respondent
did not represent appellant to a “professionally adequate level” by
“intentionally misleading his client.”
He further concludes that “there is no standard of care in
Respondent’s alleged conduct,
if true, is both serious and troubling.
We do not condone such conduct.
But we are limited by what appellant pleaded and argued to the district
court and raised on appeal to this court.
Although appellant initially alleged claims for breach of
contract and intentional fraud and misrepresentation, he did not pursue those
claims in the district court or on appeal.
Those claims are, therefore, not before us. See Thiele
v. Stich, 425 N.W.2d 580, 582 (
The only claim appellant raised on appeal is a claim for professional negligence based on respondent’s breach of the duty to consult by intentionally deceiving appellant that respondent would assert self defense at trial. As to that claim, neither appellant nor his experts have alleged a negligent act that would support a claim of professional negligence. Appellant has consistently alleged that respondent engaged in intentional acts that were both fraudulent and deceptive. While we do not condone intentional misconduct, the question is whether the conduct alleged is actionable as professional negligence.
Claims of professional negligence and fraud are separate
and distinct. See, e.g., Prichard Bros., Inc. v. Grady Co., 436 N.W.2d 460, 466-67
(Minn. App. 1989) (reversing finding of bad faith when jury instructions
commingled the concepts of negligence and bad faith, noting that bad faith is
not equivalent to negligence because it requires a showing of fraudulent
intent), review denied (Minn. May 2,
is an intentional act that “is distinguished from negligence by the element of
scienter required.” Florenzano v. Olson, 387 N.W.2d 168, 173 (
On the other hand,
professional negligence requires proof of a negligent act that departs from the
standard of care. Wartnick, 490 N.W.2d at 112.
“The very fact that an act is characterized as negligent indicates that
harm to another as the result of it was neither foreseen nor intended, although a reasonable man would have foreseen danger
to others because of it and would have adopted another course of conduct.” Hanson
v. Hall, 202
Further, claims of
negligence and fraud involve different defenses and measures of damages. For example, a contributory-negligence
defense is a proper offset to liability for an unintentional act, but is not an
adequate defense for intentional acts. See, e.g., Hanson, 202
Appellant has failed to assert a negligent act consistent with his theory of professional negligence. Rather, he challenges his former attorney’s professional judgment—the exercise of which is protected—and conduct that was intentional and purposeful. But appellant did not pursue theories of intentional fraud and misrepresentation in response to summary judgment, and he rested on negligence. Consequently, appellant’s claim for professional negligence fails as a matter of law.
Because we conclude that appellant failed to establish as a matter of law that respondent committed acts that constitute negligence, it is not necessary for us to reach either the third or fourth element required to establish a legal-malpractice claim, and we decline to do so.
D E C I S I O N
The district court did not abuse its discretion by determining that appellant’s first affidavit of expert review was deficient. Nor did the district court err by permitting appellant to submit a substitute affidavit to correct the deficiency or by granting summary judgment on appellant’s malpractice claim on the ground that appellant failed to establish a prima facie case of professional negligence. Therefore, we affirm.
 Koch’s affidavit also concurs with the
conclusions in the affidavit of Professor Scherschligt. The Scherschligt affidavit also asserts that
respondent had a duty to present self defense.
 In a criminal case, the
lawyer must abide by the client’s decisions regarding whether to plead guilty,
to waive a jury trial, or to testify.
 Appellant also has the right to file an ethics complaint with the Lawyers Professional Responsibility Board.