before we began i want to make note of  the historic nature of our session this morning because this marks the first argument in which our newest judge judge  south dakota will be participating here to my left and we welcome judge kobus to to the court had to argument this morning and with that note mr polk would you announce the calendar for this morning record without argument eighteen one nine four wind minnesota william anderson etc versus city of minneapolis ethel eighteen one six five four minnesota present argument in front of you this morning it's always an honor and before this court i don't want to rehash the pleadings that are before you or the briefs and just would like to focus on i think the two key issues in this matter for purposes of your determination and what we believe judgment gummer in the lower court simply got ron number one is the issue of the subsidy of the expert affidavit with respect to counts one and two of the complaint and i think the court before it even though we are in a federal level rather than the state level has an important decision in an opinion to issue on the basis and viability of a claim against an attorney for something other than negligence and the case before you in fact is such a case which involves not the negligence of counsel but in fact the intentional project on including conduct of an attorney and b half his clients in order to hurt appellant in this case both glo hospitality and mr sam do as they counsels the interruption but the statute here the deals with expert witnesses is not a statute that requires expert witnesses right it has or has to do with cases in which in which the under the general law expert witnesses are are required is not correct correct and also deals might mainly negligen statute is out of case your honor and we have to have flexibility in the law to be able to apply facts and different scenarios every case is different you know even though you are there is a there are a myriad of cases here that indicate that breaches of fiduciary duty are those kinds of cases sound in professional negligence your your point is that not all such cases have to do with the standard of care and particular intentional expert testimony for instance and in for say enter in criminal cases because it's a different we're looking at a different standard and if an attorney has exceeded its has intentionally engaged in conduct that has nothing to do with negligence he can say you know that negligence says you know what i trusted my client but i didn't do enough research or i didn't you know i made a mistake that's negligence and we need an expert to say you know what this attorney based on the reasonable standard of all of these all of the attorneys as we see them right should have acted in such a manner here this is not a question of should this attorney you know acted differently big question is did this attorney gauge in fraud deception misleading animating conduct with respect to facts that then led the tribunals or the lower state the court in bemidji to make determinations that then that's really that's the issue so what what is an expert going to come and say that you know it's wrong to lie to the state court to the federal court we don't need an expert for that purpose counsel is this an issue first impression in your view i mean what's your best case or and we also have the what's been case which deals with aiding and abetting issue where attorneys are clearly liable for aiding and abetting the fraudulent conduct of their clients if the their closed her eyes to it or actively participate so i would direct this court to three three decisions and i can i can cite them but they're there in the in the briefs so the knows the court was very clear that you was representing was actually was representing or should have been representing the interests of the plaintiffs in that in this lawsuit the claim is that what you're saying the claim is exactly what the claim isn't in the hill case where the attorney intentionally engaged in a conflict of interests against his client which in this case is glossed mentality that court indicated that the jury was within its purview without an expert and that the language is clear in the in the field the says i thought conflict of interest was was an area that was not accepted from this expert affidavit requirement in iran that it is if the conduct is is that the conflict is negligence in other words if there's a mistake if the if the conduct is intentional so and i want to read the hill case that expert testimony is not necessary in cases where the conduct complained up can be evaluated adequately by a jury an expert of in the absence of expert testimony and wouldn't you know on further to to indicate that that basically that the issue of the conflict of interest in that case was it was clear on its face was intentional and did not require a so the hill court held that there was no question that the attorney inhaling gazin do a representation and that so no expert testimony was required and they they held even on the professional negligence  but the the conduct here that we're dealing with is not negligent and where the conduct this is intentional in other words where there is false statements being made to or a court the statute in minnesota forty one point zero six is very clear you cannot lie to the tribunals we don't need an expert to come forward and say you know what ladies and gentlemen you can't lie to a court or says are you speaking to that this court needs to address is what what is the you know how do we deal with materiality when we're trying to win when a plaintive is supposed to establish a genuine  the various circuits that are cited in the brief and the restatement that the issue of materiality and the sufficiency of that evidence that is is really reserved for the jury based on all of the the available case law the job of the plaintiff is to establish issues of material fact what are your most are your facts on your broad climb the facts on the fraud claim are that we have the you have his affidavits you have the ownership documents that were were drafted you have the tax returns to show a different picture than what was submitted by candlelight to the court even after he got the tax returns which clearly showed that sandu was an owner he continued to represent that he wasn't and never you know we have a duty attacking my duties of an attorney we have a duty to at least retract or correct the false information that we presented we have a duty not to as witnesses in the case that very representing somebody are and even though he was well have those statements you just made that sounds like the kind of typical legal malpractise kinds of issues that an expert would be typically in which an x expert when you took it would take typically be utilized but that's the statutory requirement not to lie to the tribunals and when if you and i are stand there's a little bit of an overlap but we have to we have to be able to in other words an echo what would an expert upon in this case you can't lie to a tribunal it's be a it's not a the standard of care of a typical attorney and that's that would be ridiculous to you know an expert under you know we have the dubbers standard we have different standards for experts an expert suppose that this isn't really an attorney client question either is it and then claim you know i don't know i trust the trust of my client so there's a very serious issue of credibility with respect to his testimony it doesn't it's either he had lack of knowledge or it can be directly conflicts with the although the statute appears to limit the affidavit requirement to actions alleging negligence or malpractise the courts have routinely expanded the requirement that any action derivative  of legal malpractise claim she cites pearson versus oxford their breach a fiduciary duty aiding and abetting tortious conduct fraud and misrepresentation and civil conspiracy were all fiduciary duty and breached it by making misrepresentations concealing in failing to disclose material facts failing to inform clients of material information and by acting for their own benefit and a negligence or malpractise there must be an expert and they have expanded to this to the same identical kinds of the do she claims that we just heard what the mazlan law firm was charged with and they said that it's within the statute as to the cases that the statute doesn't even apply and then as to that case that case involved genuine conflicts of interest by an attorney named and who represented both sides in the transaction had oral and did not put it in writing for both clients and they found there that they that this that that case could be adequately evaluated without an expert testimony a lot of those minnesota cases i read them  of others which they had a conflict of interest with and i would just respectfully urge that's exactly what i just heard minutes a tell the other case they relied upon it as they leaf urged that they don't need an expert i think justice judge mchenry just nailed this determining whether a client attorney breached a fiduciary duty that's what they pleaded is far more complex and nuanced that missing a deadline or stealing clients funds this claim turns  case no ski is a two thousand and six case so the statute is in play and it's kind of a weird event it happens up by st cloud minnesota two neighbors don't like each other and one comes over with his gun and shoots shoots his seven times in the air and then clicks it three times he never aims it but he shoots it and he's charged with assault his lawyer joe fried burger it really distinguished lawyer and many applets determines there was no assault and let's not go with self defense they urged they had an expert who filed an affidavit that the client urged that self defense be in the in the charge to the stand for the position you don't need an affidavit they had an affidavit but they didn't plead this intentional act of that he would really wanted to do harm to his client and that's about what we hear today and i would just director that cannes or new directed or so oversight saying and harry's alleged misappropriation of sand dues investment to the contrary canceller had no involvement in the regular course of the operations or finances of or the hotel cancer's role as glos limited attorney was limited to drafting amending corporate documents which were requested and later executed by his client's judgment comrie writes in some the record does not reflect any what a corporate ownership records disclosed he would need and that's what he says in the affidavit and that's what he would know he would know what the organization documents were and what the corporate documents met about by this time he had file as to that note their own lawyer mr gilbert from duluth after that and written documents signed only urged that mr divin dar had ninety seven arry had three and even their own lawyer didn't send his own lawyer didn't allege sandu had an odor ship interest or that's pretty compelling i would say as to a summary judgment motion when your own lawyer doesn't claim you have an ownership interest count count four is this is is case as the trial court concluded that an attorney acting with the the scope of his employment as an attorney is a muni from liability to third parties for actions arising out of that professional relationship just think how easy it would be to say about the other lawyer they lied in a piece of paper and they knew better the court wrote in mcdonnell persists to it this immunity but to be sure made not be invoked if the attorney exceeding the bounds of the new unique agency relationship either is dominated by his own personal interest nowheres that ever alleged or knowingly practice with his client preparation a fragile and as judgment gummer he said it page twenty five there is no evidence that cancer substantially assisted or encouraged singing and harry to preach their duties to sandu count five as vicarious liability of the illegal in and registered and found that there was a breach didn't require an expert the court that denied summary judgment on the on the related so did the court denied summary judgment on the fraud and related intentional tort claims and then dismissed but dismissed the malpractise claims thanks so you and that's the point we're trying to make the judgement gummer's that your honor we have decisions in the state court w they're making the extinctions and and for some reason judgment gummer just lump everything together and said this is this is all on claim it all reads a negligence and dismissed it which is completely wrong and it's whether mr cans learn new or when he found out whether his testimony is credible or not those are all reserved for the jury and that we have plenty of facts stored and all of the witnesses and the facts deserve to be and have to be