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Portfolio assignment legal ethics FD

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Amanda Talbert
February 20, 2015
CITATION: Noske v. Friedberg, 670 N. W. 2d Supp. Ct. Minn. (2003).
FACTS:
In July of 1989, James Noske was arrested and charged with five counts of second
degree assault. Noske had fired a gun in the air and was pointing it at his neighbors. Noske then
hired Joseph Friedberg to represent him in court. Noske wanted to make sure that the attorney he
hired would be willing to use the claim of self defense for his trial. Noske and Friedberg talked
about possibly using self defense as a defense, but Friedberg did not pursue it in the trial.
Ultimately, the jury convicted Noske of one count of second degree assault and was acquitted of
the other four counts. Noske went to prison on March 5, 1993. Noske petitioned for
postconviction relief by alleging that he was denied the effective assistance of counsel because
Friedberg did not pursue the self defense for the charges brought against him.
The postconviction court denied his petition. Noske appealed his conviction, sentence,
and the denial of the postconviction relief to the court of appeals. They denied the review. On
January 27, 1995 he was released and placed on supervised release. On May 25, 1995, Noske
petitioned for a writ of habeas corpus in federal district court to overturn his conviction and to be
released from the supervised release because he claimed the ineffective assistance of council at
his state trial.
In January of 1999, Noske was granted the petition of habeas corpus and vacated
his assault conviction by the federal district court. On September 13, 2001, Noske commenced a
malpractice claim against Friedberg and his law firm for legal malpractice for ineffective
assistance at his trial in 1990. Friedberg then moved for a dismissal of the action, saying that it
was barred by the six year statute of limitations in Minnesota’s statutes (Minn.Stat. § 541.05,
subd. 1 (5) (2002).
The district court reasoned that the malpractice occurred during litigation in the criminal
trial; that Noske had suffered damages from his conviction and incarceration, and that that had
all occurred more than six years before his malpractice claim was commenced. The court of
appeals reversed, saying that Noske’s legal malpractice did not accrue and that the statute of
limitations did not begin to run until he obtained relief from the conviction and was released in
1999.
ISSUE(S):
1. Whether a legal malpractice action against a criminal attorney starts to accrue at the time
of the plaintiff’s conviction or when the postconviction relief is granted based on the
claims of ineffective assistance of counsel at the plaintiff’s criminal trial.
2. Whether Noske may use the ineffective assistance of counsel to “collaterally estop” or to
stop him from alleging or denying the facts of his previous act, allegation, or denial of the
facts that happened in the previous act. Friedberg from litigating the issue of negligence
in the legal malpractice action.
RULE(S):
Minn. Stat. § 541.05, subd. 1 (5) (2002), states the statute of limitations is six years for a
criminal, or personal injury or violation of rights of another, that does not pertain to a contract
and not enumerated.
Minn. R. Civ. P. 12.02(e), states that any defense, be it law or fact, to a claim that
provides relief in any pleading, being a claim, counterclaim, cross claim, or a third-party claim,
shall be only be asserted in the responsive pleading, except for the defense of failure to state a
claim upon which relief can be granted.
Hermann v. McMenomy & Severson, 590 N.W. 2d. 641, 643 (Minn.1999). Is a case about
when the cause of action starts to accrue for a legal malpractice case.
Weston v. Jones, 160 Minn. 32, 37, 199 N.W. 431, 433 (1924). A case where the court
held that a plaintiffs lack of knowledge of a cause of action will not suspend to statute of
limitations if it is running.
Traverlers Ins. Co. v. Thompson, 281 Minn. 547, 555, 163 N.W. 2d. 289, 294 (1968). A
case in which a person who is convicted of a murder can be collaterally estopped form
relitigating the issue.
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L. Ed. 2d. 383 (1994). A
case in which an inmate brought an action against the county prosecutors and state investigators
by alleging that his conviction violated his constitutional rights.
Martens v. Minn. Mining & Mfg. Co., 616 N.W. 2d 732, 739-40 (Minn.2000).
White v. State, 309 Minn. 476, 248 N.W. 2d 281, 285 (1976). A case in which the court looked
at “the issue of ineffectiveness is not to pass judgment on the abilities of a defense lawyer.”
ANALYSIS:
The court cites In Herman v. McMenomy & Severson, 590 N.W. 2d. 641, 643
(Minn.1999), “A cause of action accrues and the statute of limitations begins to run when the
cause of action will survive a motion to dismiss for failure to state a claim upon which relief can
be granted.” This relates to the evidence the plaintiff must show in order to survive a motion to
dismiss under Minn. R. Civ. P. 10.02(e). The plaintiff needs to allege the following facts in order
to state a claim. (1) the existence of the attorney-client relationship between the plaintiff and
defendant, (2) act(s) that constitute negligence or the breach of contract, (3) that those acts were
the cause of the plaintiff’s damages, and (4) that but for the defendant’s actions or conduct that
the plaintiff would have been successful in either the prosecution or defense of the action. If the
plaintiff fails to establish any of these facts then the claim will be defeated and dismissed.
Friedberg uses Hermann, to claim that Noske’s cause of action did accrue at the time of
his conviction because that is when Noske would have suffered damages because of the
ineffective assistance of counsel. Friedberg also states that Noske’s lawsuit could have survived
the motion to dismiss as laid out in Minn. R. Civ. P. 10.02(e), if it was brought within the six
years of his conviction. Friedberg also claims that if the court holds that the statute of limitations
does not begin until the postconviction relief is obtained, then it would not be consistent with the
court’s ruling in Weston v. Jones, 160 Minn. 32, 37, 199 N.W. 431, 433 (1924).
The court has held that a person convicted of a crime may not attack a criminal
conviction if it is valid in a civil proceeding. That holding was in Traverlers Ins. Co. v.
Thompson, 281 Minn. 547, 555, 163 N.W. 2d. 289, 294 (1968). The court came to the conclusion
that they could not permit a retrial of the facts and issues already determined in the criminal
proceeding would not be effective for the courts to do so and that it would embarrass or make
people question the judicial process. The reasoning from Travelers does apply to this case
because the facts are very similar as those of this case. The court also believes that it would be
improper to impose the burden of responsibility onto the defense attorney from the criminal
defendant.
The United States supreme court held in a similar case of the above in Heck v.
Humphrey, that civil proceedings are not an appropriate place to relitigate something that was
already decided in a criminal procedure which resulted in a conviction that has not been
reversed.
In order to survive a motion to dismiss a legal malpractice case a criminal defendant
plaintiff would have to prove that the attorney caused the damages and that but for the attorneys
negligence, the criminal defendant plaintiff would have been acquitted of the charges brought
against him. The court reasons that until Noske was granted the habeas corpus relief his legal
malpractice claim would not have held up to the Minn. R. Civ. P. 12.02(e) motion to dismiss.
Weston does not provide a different result that Friedberg told the court that it should. In
Weston the case was a running of the statute of limitations. The actions that give rise to the cause
of action were unknown until after the six year statute of limitations for commencing that action.
In this case the question that is presented to the court is when the claim accrued. In this
case, unlike Weston, it involves a criminal conviction that was not subject to collateral attack in a
civil proceeding. The court notes that other jurisdictions have disapproved of a holding that a
legal malpractice action does not accrue until a criminal conviction is overturned.
The Minn. Stat. § 541.05, subd. 1 (5) (2002), states the statute of limitations is six years
for a criminal, or personal injury or violation of rights of another, and that that does not pertain to
a contract and not enumerated. Someone has six years to file a malpractice claim after the
malpractice was made. This means that someone has to file a claim within that time frame or
they cannot file one.
In White v. State, the court previously held that a finding of ineffective assistance of
counsel does not ensure the success of a malpractice action against the defense attorney. The
court noted in White, that the issue is not to pass judgment on the abilities of the defense lawyer
but rater the concern that whether our system of criminal justice has functioned properly. The
court had to decide whether the defendant received the effective assistance that is required to
assure him a fair trial and keep safe the integrity of our justice system.
HOLDING:
1. The court holds that Noske’s legal malpractice claim did not accrue until he was
granted the habeas corpus relief, and that was the point in which it was possible that
any evidence that was produced and is consistent with the pleader’s theory to grant
the relief that was demanded.
2. The court holds that the federal’s court holding that Friedberg provided ineffective
assistance of counsel is not conclusive to Noske’s claim and that Friedberg is not
stopped from litigating the elements of Noske’s legal malpractice claim.
DISPOSITION: Affirmed.

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Portfolio assignment legal ethics FD

  • 1. Amanda Talbert February 20, 2015 CITATION: Noske v. Friedberg, 670 N. W. 2d Supp. Ct. Minn. (2003). FACTS: In July of 1989, James Noske was arrested and charged with five counts of second degree assault. Noske had fired a gun in the air and was pointing it at his neighbors. Noske then hired Joseph Friedberg to represent him in court. Noske wanted to make sure that the attorney he hired would be willing to use the claim of self defense for his trial. Noske and Friedberg talked about possibly using self defense as a defense, but Friedberg did not pursue it in the trial. Ultimately, the jury convicted Noske of one count of second degree assault and was acquitted of the other four counts. Noske went to prison on March 5, 1993. Noske petitioned for postconviction relief by alleging that he was denied the effective assistance of counsel because Friedberg did not pursue the self defense for the charges brought against him. The postconviction court denied his petition. Noske appealed his conviction, sentence, and the denial of the postconviction relief to the court of appeals. They denied the review. On January 27, 1995 he was released and placed on supervised release. On May 25, 1995, Noske petitioned for a writ of habeas corpus in federal district court to overturn his conviction and to be released from the supervised release because he claimed the ineffective assistance of council at his state trial. In January of 1999, Noske was granted the petition of habeas corpus and vacated his assault conviction by the federal district court. On September 13, 2001, Noske commenced a malpractice claim against Friedberg and his law firm for legal malpractice for ineffective assistance at his trial in 1990. Friedberg then moved for a dismissal of the action, saying that it was barred by the six year statute of limitations in Minnesota’s statutes (Minn.Stat. § 541.05, subd. 1 (5) (2002). The district court reasoned that the malpractice occurred during litigation in the criminal trial; that Noske had suffered damages from his conviction and incarceration, and that that had all occurred more than six years before his malpractice claim was commenced. The court of appeals reversed, saying that Noske’s legal malpractice did not accrue and that the statute of limitations did not begin to run until he obtained relief from the conviction and was released in 1999. ISSUE(S): 1. Whether a legal malpractice action against a criminal attorney starts to accrue at the time of the plaintiff’s conviction or when the postconviction relief is granted based on the claims of ineffective assistance of counsel at the plaintiff’s criminal trial. 2. Whether Noske may use the ineffective assistance of counsel to “collaterally estop” or to stop him from alleging or denying the facts of his previous act, allegation, or denial of the facts that happened in the previous act. Friedberg from litigating the issue of negligence in the legal malpractice action.
  • 2. RULE(S): Minn. Stat. § 541.05, subd. 1 (5) (2002), states the statute of limitations is six years for a criminal, or personal injury or violation of rights of another, that does not pertain to a contract and not enumerated. Minn. R. Civ. P. 12.02(e), states that any defense, be it law or fact, to a claim that provides relief in any pleading, being a claim, counterclaim, cross claim, or a third-party claim, shall be only be asserted in the responsive pleading, except for the defense of failure to state a claim upon which relief can be granted. Hermann v. McMenomy & Severson, 590 N.W. 2d. 641, 643 (Minn.1999). Is a case about when the cause of action starts to accrue for a legal malpractice case. Weston v. Jones, 160 Minn. 32, 37, 199 N.W. 431, 433 (1924). A case where the court held that a plaintiffs lack of knowledge of a cause of action will not suspend to statute of limitations if it is running. Traverlers Ins. Co. v. Thompson, 281 Minn. 547, 555, 163 N.W. 2d. 289, 294 (1968). A case in which a person who is convicted of a murder can be collaterally estopped form relitigating the issue. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L. Ed. 2d. 383 (1994). A case in which an inmate brought an action against the county prosecutors and state investigators by alleging that his conviction violated his constitutional rights. Martens v. Minn. Mining & Mfg. Co., 616 N.W. 2d 732, 739-40 (Minn.2000). White v. State, 309 Minn. 476, 248 N.W. 2d 281, 285 (1976). A case in which the court looked at “the issue of ineffectiveness is not to pass judgment on the abilities of a defense lawyer.” ANALYSIS: The court cites In Herman v. McMenomy & Severson, 590 N.W. 2d. 641, 643 (Minn.1999), “A cause of action accrues and the statute of limitations begins to run when the cause of action will survive a motion to dismiss for failure to state a claim upon which relief can be granted.” This relates to the evidence the plaintiff must show in order to survive a motion to dismiss under Minn. R. Civ. P. 10.02(e). The plaintiff needs to allege the following facts in order to state a claim. (1) the existence of the attorney-client relationship between the plaintiff and defendant, (2) act(s) that constitute negligence or the breach of contract, (3) that those acts were the cause of the plaintiff’s damages, and (4) that but for the defendant’s actions or conduct that the plaintiff would have been successful in either the prosecution or defense of the action. If the plaintiff fails to establish any of these facts then the claim will be defeated and dismissed. Friedberg uses Hermann, to claim that Noske’s cause of action did accrue at the time of his conviction because that is when Noske would have suffered damages because of the ineffective assistance of counsel. Friedberg also states that Noske’s lawsuit could have survived the motion to dismiss as laid out in Minn. R. Civ. P. 10.02(e), if it was brought within the six years of his conviction. Friedberg also claims that if the court holds that the statute of limitations does not begin until the postconviction relief is obtained, then it would not be consistent with the court’s ruling in Weston v. Jones, 160 Minn. 32, 37, 199 N.W. 431, 433 (1924). The court has held that a person convicted of a crime may not attack a criminal conviction if it is valid in a civil proceeding. That holding was in Traverlers Ins. Co. v. Thompson, 281 Minn. 547, 555, 163 N.W. 2d. 289, 294 (1968). The court came to the conclusion that they could not permit a retrial of the facts and issues already determined in the criminal proceeding would not be effective for the courts to do so and that it would embarrass or make
  • 3. people question the judicial process. The reasoning from Travelers does apply to this case because the facts are very similar as those of this case. The court also believes that it would be improper to impose the burden of responsibility onto the defense attorney from the criminal defendant. The United States supreme court held in a similar case of the above in Heck v. Humphrey, that civil proceedings are not an appropriate place to relitigate something that was already decided in a criminal procedure which resulted in a conviction that has not been reversed. In order to survive a motion to dismiss a legal malpractice case a criminal defendant plaintiff would have to prove that the attorney caused the damages and that but for the attorneys negligence, the criminal defendant plaintiff would have been acquitted of the charges brought against him. The court reasons that until Noske was granted the habeas corpus relief his legal malpractice claim would not have held up to the Minn. R. Civ. P. 12.02(e) motion to dismiss. Weston does not provide a different result that Friedberg told the court that it should. In Weston the case was a running of the statute of limitations. The actions that give rise to the cause of action were unknown until after the six year statute of limitations for commencing that action. In this case the question that is presented to the court is when the claim accrued. In this case, unlike Weston, it involves a criminal conviction that was not subject to collateral attack in a civil proceeding. The court notes that other jurisdictions have disapproved of a holding that a legal malpractice action does not accrue until a criminal conviction is overturned. The Minn. Stat. § 541.05, subd. 1 (5) (2002), states the statute of limitations is six years for a criminal, or personal injury or violation of rights of another, and that that does not pertain to a contract and not enumerated. Someone has six years to file a malpractice claim after the malpractice was made. This means that someone has to file a claim within that time frame or they cannot file one. In White v. State, the court previously held that a finding of ineffective assistance of counsel does not ensure the success of a malpractice action against the defense attorney. The court noted in White, that the issue is not to pass judgment on the abilities of the defense lawyer but rater the concern that whether our system of criminal justice has functioned properly. The court had to decide whether the defendant received the effective assistance that is required to assure him a fair trial and keep safe the integrity of our justice system. HOLDING: 1. The court holds that Noske’s legal malpractice claim did not accrue until he was granted the habeas corpus relief, and that was the point in which it was possible that any evidence that was produced and is consistent with the pleader’s theory to grant the relief that was demanded. 2. The court holds that the federal’s court holding that Friedberg provided ineffective assistance of counsel is not conclusive to Noske’s claim and that Friedberg is not stopped from litigating the elements of Noske’s legal malpractice claim. DISPOSITION: Affirmed.