Tip:
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 successor/omitted heir;

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 this stuff.

Dave Porter
Attorney at Law
Minneapolis
probater@earthlink.net

Trap:
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 awarded.

Paul F. Carlson
Kennedy & Nervig, LLP
Wadena
paul@kenelaw.com

 

Tip:
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).

 

William Forsberg
Parsinen Kaplan Rosberg & Gotlieb
Minneapolis
wforsberg@parlaw.com

Trap:
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 great regret.

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
Minneapolis
dlillehaug@fredlaw.com

 

Trap:
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 action. 

Marshall H. Tanick
Mansfield Tanick & Cohen, PA
Minneapolis
mtanick@mansfieldtanick.com