Supreme Court upholds Superior Court decision in Olson malpractice suit

Monadnock Ledger-Transcript
Published: 7/3/2019 6:47:15 PM

The State Supreme Court upheld a lower court’s decision to dismiss a malpractice suit brought by a Rindge man convicted of federal tax evasion.

Aaron E. Olson of Rindge, who pled guilty to four counts of tax evasion in connection with a scheme to defraud investors of millions of dollars in a Ponzi-style scheme in 2015, sued his initial counsel in the case. 

According to a decision filed by the Supreme Court on June 26, Olson was originally counseled by Robert S. Carey of the firm Orr and Reno, and alleged Carey committed malpractice for inaccurately representing the potential sentence of a proposed plea agreement to Olson.

In April of 2014, Carey advised Olson of a plea agreement which he told Olson would require him to serve a maximum sentence of five years in prison. Olson agreed to enter a guilty plea in exchange for the plea agreement. In reality, however, the maximum sentence proposed was 20 years – five years per charge.

Before the sentencing hearing, Olson hired new representation and withdrew his guilty plea until a new plea agreement was reached in Feb. 2015. Olson was sentenced to a term of five years in federal prison under the new plea agreement.

Olson sued Carey for malpractice, based upon Carey’s legal assessment of the original plea agreement. However, the case was dismissed by the superior court, on grounds that Olson did not provide sufficient expert testimony to determine whether Carey breached his duties.

Olson provided testimony of Peter Russo, a former federal probation officer. Russo was consulted by Olson’s second lawyer about the maximum sentence he could be exposed to under the initial plea agreement. However, the court found Russo did not provide any opinion on Carey’s standard of professional care or the quality or consequences of Carey’s representation of Olson. Russo is not a lawyer, and is not familiar with the standards of malpractice in New Hampshire, and the court found his testimony didn’t meet the benchmark for determining Carey committed malpractice.

Olson appealed the decision to the Supreme Court, which upheld the Superior Court’s decision.

“Although Russo’s testimony may provide some evidence that Carey’s advice to the plaintiff was erroneous, proof of an attorney’s mistake is insufficient by itself to prove a legal malpractice claim,” according to the Supreme Court decision. 

Malpractice requires proof that an attorney “breached his duty to exercise reasonable professional care, skill and knowledge in providing legal services to a client.”

 

Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.


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