Petition for Appeal to Minnesota Supreme Court A10-1205 | Legal Evil? In their own Words - Exhibit 1B

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Legal Evil? In their own words - Part 2 of 3 - A Republic if you Can hold it - Minneapolis Independent | Examiner.com http://www.examiner.com/independent-in-minneapolis/legal-evil-their-own-words-part-2-of-3#ixzz1UOwug3Ww

MAY IT PLEASE THE COURT:

This petition is brought pursuant to Rule 117 of the Minnesota Rules of Civil Appellate Procedure, seeking review of the decision of the Minnesota Court of Appeals filed on April 12, 2011, reproduced on pages A15-A23 in the appendix hereof.

LEGAL ISSUES

Your petitioner (hereinafter called Vollkommer) asks that this Court accept jurisdiction over and review the entire case, including all questions discussed in the opinion of the court of appeals. The incidental but important questions are whether the petitioner pleaded a good counterclaim for treble damages under Section 481.07 of Minnesota Statutes; whether a motion to vacate summary judgment filed with the time allowed in case of a motion for new trial is a motion made of right and to be disposed of as such, as held in Madson v. Minnesota Mining & Mfg. Co., 612 N. W. 2d 168 at 171-172 (Minn. 2001); whether self-billed attorney’s fees for collection on a retainer contract can be collected contrary to definition of “attorney’s fees” in Kay v. Ehler, 499 U. S. 432 at 435-438 (1991), where the contract itself does not otherwise define the term. But the question, which most urgently requires the attention of this Court as the highest judicial tribunal of Minnesota, is as follows:

Does a legal services contract between a lawyer or law firm and a client necessarily include an implied-in-law covenant that the lawyer or law firm will perform services contemplated in conformity with established rules of legal ethics?

The district court explicitly held in the negative, at the explicit urging of the respondent law firm, and the court of appeals also affirmed in explicit language: a legal services contract, we have been told, does not include an implied-in-law undertaking that services will be performed in conformity with the Minnesota Rules of Professional Conduct, and that, consequently, if the lawyer or law firm violates those rules during

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representation to the injury of the client, as by withdrawing from representation without good cause and leaving the client defenseless in the high tide of litigation, the lawyer or law firm has not breached the contract. See pages A11, A13, and A21-A22 of the appendix hereof. In practical effect, we have been told that, when a lawyer agrees to represent a client, he does not promise, as an implied-in-law term of his undertaking, to represent the client competently, diligently, and honestly, -- that he does not promise to charge reasonable fees, -- that he does not promise to avoid conflicts of interest, -- that he does not promise to keep confidences and secrets, -- that he does not promise to account scrupulously for his client’s funds, etc.

CRITERIA RELIED UPON IN SUPPORT OF THIS PETITION

If this obnoxious holding of the district court and the court of appeals is allowed to stand, the pride of the legal profession will be deprived of one of its most important foundation stones. This case presents an important issue which vitally impacts the practice of law in the State of Minnesota in keeping with established rules of legal ethics, and, if the false and shocking impressions given by the judgments below are left uncorrected, public confidence in the bench and bar will suffer irreparable harm. This Court should, therefore, decide the question properly in a formal and published opinion so as to make unambiguous what is expected of lawyers in dealing with and representing their clients. See Rule 117, Subd. 2(a), of the Minnesota Rules of Civil Appellate Procedure.

STATEMENT OF THE CASE AND THE FACTS

The issues in this case are conveniently defined by the pleadings, and are elaborated in greater detail on the full record. See pages A1-A10 of the appendix hereof.

Vollkommer hired the law firm Fabian, May & Anderson (the respondent here) to undertake certain civil litigation for him. During the course of representation Vollkommer paid bills as and when due in the approximate amount of $51,000, but a dispute arose over one

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billing represented by a certain invoice or a certain date. Fabian, who was Vollkommer’s lead counsel, seceded from the predecessor firm of Nichols, Kaster, and Anderson which had undertaken and was paid for substantial work on the file. Vollkommer reimbursed Fabian, May & Anderson for expenses incurred as a sign of good faith, but asked for an adjustment in the billing, lest he pay twice for substantially the same work as earlier done by Nichols, Kaster & Anderson, then later redone by Fabian, May & Anderson, contrary to Rule 1.5 of the Minnesota Rules of Professional Conduct. Fabian disagreed, and refused to adjust the amount due. Vollkommer then offered as a compromise settlement to pay half of the billed amount, but invited Fabian to make a counteroffer on the amount due if the offer was not satisfactory. Fabian, May & Anderson then and there withdrew from the case over Vollkommer’s protest, leaving Vollkommer defenseless in the high tide of litigation, requiring him to engage new counsel and incur substantial expense which he would not otherwise have incurred.

Fabian, May & Anderson sued Vollkommer for fees by complaint setting forth two counts, the first alleging breach of the retainer agreement, the other based on a theory of quasi-contract for quantum meruit. Vollkommer pleaded by way of affirmative defense that, by abandoning him in the middle of litigation merely because of a legitimate dispute over one billing which could have been settled easily enough, by mediation if nothing else, Fabian, May & Anderson violated Rule 1.6 of the Minnesota Rules of Professional Conduct; that the written retainer agreement included an implied-in-law covenant requiring all services to be rendered according to established rules of legal ethics; that Fabian, May & Anderson was therefore in breach of contract, and so was limited to its claim of quasi-contract for quantum meruit, subject to offset and counterclaim, etc.

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Fabian, May & Anderson argued in the district court that there is no implied-in-law covenant in a legal services contract that services will be performed according to the established rules of legal ethics. See page A11 of the appendix hereof.

The district court held that there was no implied-in-law covenant in a legal services contract requiring services to be performed according to established rules of legal ethics, reproaching counsel that there is not one case to sustain such a proposition. See A12 of the appendix hereof. On this basis the district court granted summary judgment against Vollkommer.

On appeal, Vollkommer argued that a legal services contract necessarily includes an implied-in-law covenant requiring services to be performed according to established rules of legal ethics. Remarkably, the Fabian, May & Anderson claimed that the district court never held otherwise, even though it is obvious from the record that the district court did actually deny such an implied-in-law covenant, and that Fabian, May & Anderson had actually argued to the same effect before the district court. See pages A11, A12, and A13-A14 of the appendix hereof.

The court of appeals noted the holding of the district court that a legal services contract contains no implied-in-law covenant requiring all services to be performed in keeping with established rules of legal ethics, then expressly affirmed the district court’s holding. See pages A22-A23 of the appendix hereof. This scenario is astonishing, but true, as the papers in the appendix show, and as the whole record makes plainer.

WHY REVIEW SHOULD BE GRANTED

Oral argument was denied in the court of appeals on a motion by Fabian, May & Anderson which was decided before Vollkommer’s lawyer was or could have been aware of it and before his time to plead had expired. If oral argument had been allowed, the court of appeals may not have been so confused about what actually happened in this case, as where their opinion suggested that the dispute over attorney’s fees was about discovery. See page A17 of the

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appendix hereof. There was no dispute about discovery in this case. The dispute was about an alleged duplication of work in preparing the cause before and after it was sued out by Nickols, Kaster & Anderson, and attention in a subsequent stage of the case by Fabian, May & Anderson. However the court of appeals got this and other erroneous impressions, the mistaken facts do not appear to have been from the record of this case, least of all from the pleadings. See pages A7-A8 of the appendix hereof. It may be that pressures on the court of appeals causing confusion over the facts may also have led the unfortunate holding of the district court and our intermediate tribunal that a legal services contract does include established principles of legal ethics as an implied-in-law covenant enforceable in civil litigation.

The court of appeals rested its holding on the notion that violation of our rules of legal ethics does not in itself give rise to civil litigation. It is true that an unprofessional act may not actually harm somebody in which case it is not a civil wrong. And civil liability of a lawyer is defined by the common law, not rules of legal ethics, but the common law, in discerning conduct expected of a lawyer, looks to professional standards for guidance.
In any event, it has been definitively held by this Court during its golden age that, in every personal services contract of whatsoever nature, there is an implied-in-law covenant that services will be performed in a manner which the promisee may, with objective cause and legal reason, expect under the circumstances. See Egner v. States Realty Co., 26 N. W. 2d 464 at 468-470 (Minn. 1947). A client is obviously entitled to expect that his lawyer will act in keeping with established rules of legal ethics.

Respectfully submitted,

Dated:________________________________ ______________________________________
JOHN REMINGTON GRAHAM (#3664X)
Counsel for the petitioner

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