Minnesota Lawyer Blog

I have been following with admittedly minimal interest the saga of Paris Hilton. For any one who has been living under a rock the last day or two, the 26-year-old hotel heiress was let out out of jail by the L.A. sheriff after serving only three days of a 45-day sentence (23 days with good behavior). It seems the sheriff was concerned about poor Paris' fragile emotional state, and decided to let her serve the rest of her sentence in her Hollywood home. The sheriff did this even though the judge who sentenced Paris explicitly told her she would be required to serve her sentence in jail.

Now I am not heartless and realize jail must be tough for the former debutante. After all, it's not exactly the Hilton in there. But I can't help thinking about all the people without the benefits of fame, wealth and connections who probably find their jail sentences equally upsetting, but are required to serve them nonetheless. Paris has violated her probation, which shows she has little respect for the law. I don't think she should be given another reason not to respect it.

Paris was already in an area isolated from the majority of the prison population that is reserved for celebrities and other "big ticket" prisoners. This was an understandable precaution. She should be sent back to that cell to serve the remainder of her sentence. Paris' check out time has not yet come yet. While there may not be room service or chocolates left on her pillow in her cell, I think it might be a good thing for her to have a little taste of the simple life.

The Star Tribune has reported that the Sierra Club filed a federal lawsuit earlier this week to stop the Minnesota Department of Transportation's proposed four-lane bridge across the St. Croix River. The Sierra Club claims the project violates the Wild and Scenic Rivers Act, which is designed to protect much of the waterway from development.


The proposed $484 million bridge would be built about a mile south of Stillwater's lift bridge, diverting thousands of commuters out of Stillwater's historic downtown and routing them through Oak Park Heights instead.


The debate over a new bridge has been ongoing for two decades. The Sierra Club stopped a similar proposal 11 years ago.


Anyone who has driven through Stillwater on a nice summer day knows how jammed up the route gets, and thus how long it can take to get through the downtown area. No one wants to disturb the beauty of the St. Croix River -- and no one wants to waste a tank of gas just trying to get into or through Stillwater. There must be a solution to this dilemma. Isn't it time for both sides to sit down together and figure it out?

The lesson: Don't mess with a baby boomer judge when it comes to Beatles trivia.

Before his sentencing on a felony burglary conviction, Montana resident Andrew McCormack filled out a form which asked for a "recommendation as to what you think the Court should do in this case." McCormick, 20, wrote, "Like the Beetles [sic] say, 'Let It Be.'"

Gregory Todd, the 56-year-old District Court judge came back with a sentencing memorandum that began by correcting McCormack's misspelling, then sentenced McCormack to three years probation, a fine and community service. The best part is that Todd found a way to squeeze no fewer than 41 allusions to Beatles songs and albums into the six-paragraph memorandum. McCormack could have been excused for wanting to cry, "Help!"

Minnesota Department of Labor & Industry Commissioner Scott Brener is stepping down next month to become vice president and general counsel for SFM, a Minnesota-based insurance group, the Associated Press reports today.

Brener was appointed commissioner in 2003, and has served in a variety of state government roles under Gov. Tim Pawlenty and former Gov. Arne Carlson.

His resignation is effective July 5.

I wish I could take credit for this entry, but it was prepared by Paul Fletcher, the publisher and editor-in-chief of Virginia Lawyers Weekly, our sister publication in the Old Dominion. Here is Paul's take on a story that has been making its way around the Web.

There is a legal story floating around the Internet that is worth pulling to ground and blogging about.

Last month a lawyer from a big firm in Chicago was handling a case in federal bankruptcy court in Miami. Lawyer is head of the bankruptcy section of said big firm. The judge holds an emergency hearing in a matter. As reported in the court transcript posted by the legal blog Above the Law, said lawyer was not the most deferential to the judge. Judge seemed to be wanting to do something the lawyer didn’t like, so the lawyer told her, “I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.”

First, anytime someone prefaces a remark to you with the phrase, “with respect,” watch out. You're about to do a turn as Rodney Dangerfield. Second, Ronald McDonald is not recognized as much of a legal authority. He is, after all, a clown. And third, if you insult a judge in open court, you do so at your peril.

Needless to say, the judge at whom the Happy Meal remark was aimed was not so happy. She issued a show cause to lawyer, scheduling a hearing on why he shouldn’t be suspended from practicing in her court and have his pro hac vice admission revoked.

Above the Law broke the story; the Daily Business Review provides an update on the fallout for the lawyer and his firm. Among other developments, the client is no longer his client.
The show cause hearing is set for June 25. Stay tuned.

http://www.abovethelaw.com/2007/05/atl_practice_pointers_dont_ins.php
http://www.law.com/jsp/article.jsp?id=1180515925030

The Washington-based Legal Times is reporting today that Robins, Kaplan, Miller & Ciresi is planning to close its D.C. office on Aug. 15.

I heard the much vilified "tuberculosis lawyer" was going to be on Larry King last night, so I tuned in to see him. (I am talking, of course, about Andrew Speaker, the 31-year-old Atlanta personal injury lawyer with T.B. who went on his European honeymoon and then flew back to the U.S. before going into quarantine.) Nobody really comes off looking good in this one.

Health authorities are scurrying to cover their you-know-whats after not taking serious enough action to get him not to fly and not adequately apprising him of the risks. (Please don't go just doesn't cut it.) On the other hand, Speaker does not come off looking good either. Would you fly to Europe if you knew you were carrying T.B. and had to go to a special world-renowned treatment center in Denver in a few weeks? I think a suggestion from health authorities that I not do so would be sufficient for me.

Then you have the odd situation of Speaker's father -- also a lawyer -- tape recording their conversations with health authorities. It turns out maybe it was a good thing he did, since some of what those authorities told Congress about the warnings they allegedly gave Speaker appears to be inconsistent with what's on the tape. Then again, why was the father doing the taping in the first place if he didn't think his son flying might present these kinds of issues later? His explanation to Larry King that he doesn't hear well and likes to record conversations to listen to later does not seem very plausible.

Then you can add to the mix the fact that Speaker's new father-in-law is a microbiologist for the Center for Disease Control and Prevention who works on T.B.! He told the media in the press conference that the strain of T.B. his son-in-law has absolutely nothing to do with his work on T.B. at the CDC. (Read as also covering his you-know-what, and the CDC's to boot ...)

Then you have the border inspector who let Speaker back into the country despite a warning that came up on the computer telling him not to do so. The head of the union representing border agents has said "public health issues were not receiving adequate attention and training" within the agency.

My point here is that everyone seems so busy trying to cover themselves, that no one seems interested in taking any responsibility. That is what gets folks so upset with lawyers and the legal system today.

A curious terrorism-related case with local ties took another turn
this week when U.S. District Court Judge John Tunheim declined to suppress statements made by terrorism suspect Mohamad Elzahabi.

Elzahabi was indicted in June 2004. Prosecutors say he told FBI agents that he taught sniping in Afghanistan and that he associated with Al-Qaeda leaders. He was also charged with lying to federal agents about sending walkie-talkies to Pakistan, helping to get a Massachusetts driver’s license for a man later convicted of plotting a bombing in Jordan and possessing fraudulent immigration documents.

Elzahabi claimed that statements he made to federal agents were the result of coercion and deception while he was being questioned in a hotel room. He said he felt he would be arrested if he tried to leave the room. The judge ruled that although Elzahabi "was clearly deceived by the officers and now understandably regrets his willingness to cooperate,” the choice to talk was still his.

As Minnesota Lawyer reported in April, Elzahabi’s lawyers, Paul Engh and Peter Wold, asked the court to dismiss the case on the grounds of possible violation of attorney-client privileges. Federal prosecutors, in a letter to Engh and Wold, said conversations between them and Elzahabi might have inadvertently been included in round-the clock recordings being made of Elzahabi while he awaits trial. That request was denied also.

"We're disappointed," said Engh on Wednesday. "We felt that when the FBI held [Elzahabi] in a hotel room for 17 days, that was de facto custody. But the judge disagreed, and we have to live with that."

Elzahabi's case will be tried before a jury at a date yet to be determined.

The case points out the uphill challenge faced by attorneys who take on terrorism defendants. Because of constant surveillance in federal prisons, attorneys never know when client-attorney privilege has been breached, or often, where their clients are being held.

"The war on terror has intersected the court system, which is not meant for confidentiality," said Engh in April. "You need open systems and open discovery for the system to work."

Ten partners and three associates at Lindquist and Venum have left to join forces with the Portland, Oregon-based firm of Stoel Rives, opening the firm's first Minnesota office. The lawyers practice in the areas of agribusiness and renewable energy projects including ethanol, biodiesel, biomass and wind energy facilities.

The partners are Mark Hanson, Ron McFall, Kevin Prohaska, Joe Thompson, David Quinby, Jonathan Miesen, Kevin Johnson, Eric Bartsch, Joel Dahlgren and Marc Al.

According to its Website, Lindquist had about 185 lawyers before these departures.

According to Lindquist's managing partner, Daryle Uphoff, the news wasn't a surprise but the timing was. Uphoff told Minnesota Lawyer the departure occurred around midnight last Thursday night.

The other areas of Lindquist's practice, including securities, tax, real estate and regulatory issues, "remain firm," Uphoff said. He also noted that the head of the firm's energy practice, Todd Guerrero, was still with the firm, along with some of the agribusiness lawyers.

"This is not a crippling blow by any means," Uphoff said. The firm will rebuild these practice areas "as opportunities present."

I've heard that Stoel Rives has been recruiting at at least one of the local law schools, which may indicate plans to grow in the future. No word as yet from Hanson, listed in the Stoel Rives press release as "a leader in the Minneapolis office."

Attorneys are ethically required to represent their clients zealously, but sometimes they go too far. While its rare for a lawyer to cross the ethical line while advocating for a client, it does happen every now and again.

The recently reported case of the Robins Kaplan Miller & Ciresi attorney who falsified e-mails while representing Best Buy presents an interesting example. (See "Best Buy attorney falsified e-mails" in today's Star Tribune.)

The attorney, Timothy Block, did not personally benefit from his wrongdoing. In fact, he is likely suffer some pretty hefty personal and professional consequences as a result of it. And stress and depression may have been factors in what he did. (He is reportedly being treated for related psychological conditions now.) Block also self-reported his misconduct both to the ethics authorities and his firm. (It also bears mentioning that Robins Kaplan took speedy action by immediately putting Block on medical leave, removing his biography from its website and reporting the situation both to the court and the client. )

Nonetheless, discovery misbehavior is something that we all must take seriously. It calls into question the integrity of the discovery process -- a system that relies on the forthrightness of the lawyers and parties involves. The best lesson here is to avoid the win-at-all-costs mentality; there are some things that just aren't worth it.

It is also good to recall that there is help available for lawyers grappling with depression and other issues at Lawyers Concerned for Lawyers.

There were cameras flashing in the courtroom this morning as former Minnesota Supreme Court Justice James Gilbert took his seat at counsel's table to argue a case before his old court.

But, while the day was notable for being one of the first times a former Supreme Court justice has returned to argue a case before the high court, that's not why the cameras were there. The cameras were there for the man sitting next to Gilbert, Robert Hill, who had handled the case at the trial court level. Hill, who is planning a congressional campaign against Michelle Bachman, obtained the marshal's permission to have a few campaign photos taken before the justices took the bench.

The case was Southern Minnesota Beet Sugar Coop v. County of Renville, where Gilbert, on behalf of the appellant coop, argued that the county -- and the Tax Court -- erroneously assessed the coop's sugar beet processing plant. The coop maintains that the use of a cost approach in valuing the plant and including the processing equipment as taxable real estate caused the county to assess an exorbitant tax.

The issue is important particularly in an era where property taxes have become very important to local governments, Hill told Minnesota Lawyer.

The argument was also notable for packing the courtroom, not a common occurrence in tax cases. Many of the members of the coop left their crops to attend. "These guys are farmers. They are not about putting on suits," Hill said.

The justices allowed Gilbert about two minutes before interrupting with questions, but then kept a steady pace; they responded similarly to the county's appellate attorney, Marc Manderscheid. As always, it's fruitless to try to predict the court's ruling from the questioning.

The only justice to recuse himself from the case was Sam Hanson, who once worked at Briggs and Morgan, the firm representing the county on appeal.

The following announcement is on the courts' website:

Public access to the Minnesota Appellate Courts Case Management System (P-MACS) is now available, allowing anyone to view records of appeals filed with the Minnesota Supreme Court and the Minnesota Court of Appeals.

For cases opened on or after March 3, 2003, case titles, case numbers, the names of parties and attorneys, a list of docket entries, and links to orders and opinions issued are available. For cases archived before March 3, 2003, only case titles, case numbers, and abbreviated party information are available.
Access P-MACS now

We have written about the local chapter of the Federalist Society a few times on this blog -- mostly to debunk the view that the group is any kind of clandestine society spreading right-wing conspiracies with secret handshakes. Sure the federalists are conservative and libertarian lawyers, but they wear their political leanings on their sleeve and have been responsible for some intelligent debate locally.

When we heard the group was having a CLE program on judicial elections, we decided to send a member of our editorial staff to see what the panelists would say. What, we wondered, would be the group's take on one of the most controversial subjects facing the state's legal community?

Well, it turns out, the federalists, like everyone else, are pretty much all over the map. Some want to keep judicial elections as they are, with challengers having the ability to run against incumbents; others want to switch over to some sort of retention system. This should dispel any idea that the Federalist Society is a monolithic group of identically minded individuals.

That is not to say its members don't occasionally get a pro-conservative plug in here and there. In the Minnesota Lawyer article on the program, I was amused by a quote attributed to Minneapolis attorney Bill Mohrman, who favors keeping the system as it is. Here is the quote along with the sentence preceding it:

"Mohrman countered that he’s confident in the ability of voters to sort through these issues at the ballot box. 'I think the common man is inherently conservative, and I trust the ability of the citizens to vote in contested elections,' he said." (For the full article, click here, password required.)

With all respect to Bill, whom I know to be a fine lawyer, how can he be so sure that the "common man" is inherently conservative? Is that actually true? I suppose your answer to that question might depend upon which philosopher's or theologian's view you ascribe to. For example, it may inform your decision whether you believe that man is inherently good or inherently evil.

Personally, I have no idea whether the common man is conservative or liberal. But the next time I run across one, I will be sure to ask.