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Negligence Preparing Power of Attorney; Affidavit of Expert Review; Summary Dismissal Reversed

Guzick v Kimball, et al, A14-0429, October 6, 2014, Defendant attorney had been sued for negligence in drafting a power of attorney form which was used by the attorney-in-fact to transfer the principal’s bank accounts to himself.  After the principal died his estate sued the attorney-in-fact for conversion, obtaining a non-dischargeable judgment of $226,524.39 in his bankruptcy. The Plaintiff personal representative of the estate then sued the law firm that had drafted the power of attorney which had resulted in the fraudulent transfer of assets, seeking recovery for the value of the dissipated assets and the costs and attorney’s fees expended in the litigation pursuing the attorney-in-fact.

Trial court granted summary judgment to the Defendant attorney, finding that Plaintiff had not complied with Minn. Stat. § 544.42 affidavit of expert review. The appellate court reversed the trial court, discussing the elements necessary to establish a claim for legal malpractice. The appellate court specifically held that no expert testimony was required to establish the existence of the attorney-client relationship, but agreed that expert testimony is usually required to identify the acts constituting negligence by the attorney and that the acts caused the client to sustain damages.  The court of appeals held that the disclosures found in the Plaintiff’s initial affidavit of expert review in conjunction with the expert witness interrogatory answers were sufficient to meet the statute’s requirements.

The appellate court noted that the initial affidavit of review detailed a number of actions that breached the applicable standard of care, such as failure to supervise the secretary who prepared the POA, failure to speak with the principal prior to execution of the POA to determine his competency and understanding of the broad grant of powers reflected in the  POA, as a sufficiently detailed disclosure of the claims of negligence.  The causation of damages element was implied by the same disclosures that addressed the acts of negligence.