O.K. for attorney to not file lawsuit before SOL runs

In this matter of no discipline warranted signed by Patrick R. Burns and investigated by Shawn Bartsh we have another matter not consistent with the Minnesota Rules of Professional Responsibility.

Rule 1.1 Competence

In this case attorney Clark Thurn not only did not warn of the expiring SOL but he did not file the lawsuit.

Investigator Shawn Bartsh determined that that the insurance company did not raise a SOL defense. She determined this by a phone call with the adjuster who was recollecting from some six years ago.

Next Ms. Bartsh erroneously uses a letter from the client who put the statute of limitations ending at a date of October 1, 2002. But what she does not reveal is that date was only one date for a certain area of the claim. The claim had five different dates of statutes of Limitations most of them being previous to October 1, 2002.

Ms. Bartsh had in hand clear evidence showing when the SOL started (11-11-99) and she had in hand the policy showing that it was a two year SOL but because the complainant says that the suit must be filed by October 1, 2002 then nothing else matters, not the policy not the invoice of 11-11-99, just the complainants word that the SOL ran on October 1, 2002.

To Ms. Bartsch the complainants words means everything when she wants it to but nothing when she does not want it to.

Bottom Line: It is o.k. for the attorney Clark Thurn to not warn of SOL or start a lawsuit before the expiring of the SOL so long as the SOL is not an issue for the adverse party.

UPDATE: July 2, 2009 On Appeal attorney Robert B. Bauer finds for attorney. Mr. Bauer states that he found a letter from the client stating that the lawsuit had to be filed by a certain date. What Mr. Bauer failed to realized was that the claim actually had several “dates of losses” of which would also make several dates the statute of limitations would run on. Mr. Bauer had documentation in hand that showed the actual date of when the first SOL would have run. He ignored this and chose to use a letter from the client to attorney whereas the client was asking attorney Clark Thurn to start a lawsuit for the latter claims where the statute had not run yet. It seems this is far too complicated for Mr. Robert B Bauer to comprehend. Mr. Bauer also reasons that the client files ethics complaints against all attorneys who do not agree with him. Mr. Bauer provides no facts to support this allegation nor does Mr. Bauer know how many attorneys this client has retained over the last the 30 years, nor does he know how many attorneys he has filed ethics complaints on.


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