Local Expert Not Required For Legal Malpractice Claim

The South Dakota Supreme Court affirmed and reversed in part and remanded a trial court grant of summary judgment to the defendants in a legal malpractice case.

The case involved a conflict of interest claim against a law firm that had represented three defendants in litigation over bee sites. The plaintiff here was a beekeeper.

The representation had broken down when the other clients wished to settle. The opposing party insisted that all of the clients settle or none could but the plaintiff here balked.

The trial court erred in excluding the plaintiff’s expert witness, then a partner of a Minneapolis law firm and now a justice of the Minnesota Supreme Court.

Analyzing the facts in this case, in regard to the conflicted representation claim, we note that [expert winess] Lillehaug wrote in his expert report that “the applicable standard of care is consistent with, and well stated by, Rule 1.7.” He noted how South Dakota’s Rules of Professional Conduct Rule 1.7 is identical to the American Bar Association’s Model Rules of Professional Conduct Rule 1.7. Then, during his deposition, Lillehaug testified that a national standard of care applied to legal ethics…

The Court noted that “in many cases locality is not relevant to the application of the standard of care.”  Thus, the expert testimony should have been allowed.

Further, the court found that the trial court improperly weighed the evidence in granting summary judgment to the defendants.

Chief Justice Gilbertson dissented and would retain the locality rule as a consideration in qualifying a legal malpractice expert witness:

The Court’s decision today to remove the consideration of locality from the expert witness qualification process is unnecessary and limits a circuit court’s ability to ensure that expert witnesses do, in fact, possess heightened expertise on whatever issue they are called upon to explain. Simply declaring that we apply a state or national standard does not actually remove the local legal peculiarities that attorneys in this state must handle on a daily basis. For the above reasons I would retain the locality rule.

A thought: perhaps the law of representing multiple clients  in bee site matters is a localized issue.

Then again, perhaps not.

In any event, law professors would have to give the attorneys here a bee grade. (Mike Frisch)