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Dismissal of Legal Malpractice Affirmed; Violation of Attorney Conduct Rules; Affidavit of Expert Review

Kurdymova, et al v. Robinson, A13-1734, May 12, 2014, affirmed the trial court’s dismissal of claims asserted against an attorney by husband and wife Plaintiffs who had executed conflict-of-interest waivers and paid a retainer. Both discharged the attorney Robinson, claiming he had pushed them to trial, jeopardized their case and did not adequately communicate with them. After a different attorney obtained dismissal of all charges, they had the charges expunged. They then sued Robinson for legal malpractice, violation of rules of professional conduct and defamation.

The trial court granted defendant attorney’s motion to dismiss the malpractice claim due to Plaintiffs’ failure to include any Minn. Stat. § 544.42 affidavit of expert review. The appellate court affirmed the trial court’s holding that expert testimony was necessary to prove the Plaintiffs’ malpractice claims that they sustained injury due to Robinson’s failure to request an omnibus hearing and that his communication with them fell below the requisite standard.

The Court of Appeals also upheld the lower court’s ruling that Robinson’s initial filing of his motion to dismiss constituted a demand for the affidavit of expert review, since the motion to dismiss put Plaintiffs on notice of their failure to comply with the statute more than 60 days before the dismissal motion was heard, as required by the statute.

The appellate court affirmed the trial court’s dismissal of the claim of professional misconduct, holding that a violation of the Minnesota Rules of Professional conduct does not give rise to a private cause of action. Dismissal of the defamation claim was affirmed since it was premised on the attorney’s dissemination of information related to the expunged criminal charges. Expungement did not preclude making statements about the cases in court or by private persons; only the city and county attorneys, the attorney general and state agencies were subject to the terms of the expungement order.