Where There’s A Will. Some
folks make a major effort to hang onto the originals, figuring this
will lead to more work in future and enhanced prospects of being retained
for a probate proceeding. I’ve developed a preference for filing the
original with the Probate Court in the county of testator’s residence. It costs 20 bucks, but it’s worth it:
a) There is no question as to whereabouts;
b) I don’t have to worry about mechanics of safekeeping
and/or “what happens if something happens to the lawyer?”
c) Avoids unpleasant possibility of destruction by disgruntled
d) If someone else gets to do the probate, I probably
won’t even hear about it;
e) The client gets bragging rights vis-a-vis other testators,
who get the impression that my client’s lawyer is really picky about
Attorney at Law
Conversion Claims. If
you are representing the plaintiff or defendant on a conversion claim
be aware of Minn. Stat. §548.05, which provides for treble damages
upon a finding that the property (several types are listed in the
statute) was “carr[ied] away without lawful authority[.]”
Probable cause to believe that the defendant, or the person
for whom the defendant acted, was the owner of the property are the
only defenses provided in the statute. Submit a jury instruction asking if the defendant
carried away the property without lawful authority or ask the court,
in a court trial, to make such a finding.
You may then have the basis for a post-trial motion for treble
damages. This is also a useful
tool in settlement negotiations. An
acceptable risk of a monetary judgment can become unacceptable when
the defendant learns that the damages can be three times the amount
Paul F. Carlson
Kennedy & Nervig, LLP
Joint Tenant and Creditors. A judgment creditor of one
joint tenant cannot recover from the entire amount of the proceeds
of the sale of property owned by four joint tenants.
When a judgment is docketed, it becomes a lien for the unpaid
judgment amount on “all real property in the county then or thereafter
owned by the judgment debtor.” Minn. Stat. §548.09, subd. 1 (2004) (emphasis
added). When it is undisputed
that a joint tenant did not own the entire property a judgment creditor’s
lien will not attach to the entire property.
This was the ruling in Annette
M. Gibson, et al., vs. Trustees of the Minnesota State Basic Building
Trades Fringe Benefits Funds, A05-39 (Minn. App. 09/27/05).
Parsinen Kaplan Rosberg & Gotlieb
Advice of Counsel Defense. Faced with a criminal charge, a civil claim,
or a motion for sanctions where intent is at issue, a client may wish
to invoke “advice of counsel.” Such defense is particularly tempting
when the client is no longer represented by the advising attorney.
Remind your client that the “advice of counsel” defense waives
the attorney-client privilege. See, e.g., Swanson v. Domning, 86 N.W.2d
716, 722 (Minn. 1957) (where client voluntarily testifies to statements
to or from attorney, privilege is waived).
Explain in writing that, once the door is opened even
a crack, the opposing party may obtain not only the documents reflecting
the particular advice, but all attorney-client letters, emails, notes,
and bills. If the former attorney is deposed, and feels
wronged or is owed fees, unfavorable testimony may be delivered without
Sometimes clients with rose-colored glasses may imagine
they have nothing to hide. Review
the attorney files and remind the client of unpleasant facts, incomplete
disclosures, and embarrassing tidbits.
Upon reflection, the client may opt for continued confidentiality.
David L. Lillehaug
Fredrikson & Byron, PA
Payroll Deductions. Employers are often tempted to deduct
from their employees’ salaries amounts that they claim are owing to
them by the employees. The
debts may be due to past overpayments, inadvertent or other improper
conduct by employees, or different reasons.
However, Minnesota law bars employers from making such deductions
unless the affected employees have signed written authorization for
such deduction after the debt arises. Under Minn. Stat. §181.79, employers who make
such deductions, even for debts actually owed, may be subject to a
“double damages” penalty, consisting of two times the amount of the
withheld payments, together with attorney’s fees incurred by the employee
in contesting such a withholding.
But the rights of employees under the statute are fragile. They may lawfully refuse to sign an acknowledgment
permitting a deduction from their wages after a debt arises or may
object to salary withholding without signed documentation. But, in either case, they may risk disciplinary
Marshall H. Tanick
Mansfield Tanick & Cohen, PA