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Tuesday, March 11, 2008

Time for a new approach at the AGO; Lawler should be reinstated from 'leave'

I was disappointed but not surprised when I heard assistant Attorney General Amy Lawler had been suspended from her job after interviews aired on Minnesota Public Radio and published on MinnPost critical of Attorney General Lori Swanson. Frankly, the only unexpected thing was that it took them a couple of days to do it. But of course, that's mostly because there was an intervening weekend.

Lawler is a fledgling attorney who started at the Attorney General's Office last fall shortly after graduating Harvard Law School. She's not some sort of a political hack on a vendetta against Swanson, but an idealistic young lawyer who happens to believe in unions. With the bravery (or perhaps naivete) of youth, she volunteered herself to be the public face of the union movement in the office -- something the more seasoned hands in the office were understandably reluctant to do themselves. Most of the management concerns Lawler expressed to MinnPost's Eric Black and Minnesota Public Radio have been previously expressed by a number of others in the office, albeit not for attribution.

The reason proffered for Lawler's forced administrative leave -- not going through "proper channels" for filing an ethics complaint -- strikes me as weak, particularly given that, in a labor dispute, the channels are what's the problem. In any case, I believe the complaints Lawler has against Swanson are based on her management style rather than on any alleged ethical breach. And at least one press report indicated that Lawler had affirmed as much in an e-mail to management. So it appears the "crime" for which Lawler was put on forced leave was that she failed to follow the proper procedures for bringing an ethical complaint that she did not have. (To borrow a phrase from "Casablanca," they have not quite decided yet whether she committed suicide or was shot while escaping ...)

Under the playbook that has been in use at the AGO for the last nine years, management would take a hard line with a dissenter like Lawler --- isolate, marginalize and root out. But what if -- and this is a big what if -- Swanson threw the playbook into the meat grinder rather than Lawler. This sincere young woman did what she thought was right and highlighted some longstanding concerns that badly need addressing, regardless of whether management agrees with the methodology. What if management actually listened to the concerns she expressed and attempted to address them? What if rather than treating Lawler as the enemy, management treated her as the friend who told it that its zipper was open? That might be a more effective way of diffusing the labor situation at the office than any sledgehammer-approach could ever be.

It's time for a new approach at the AGO. Allowing Lawler to return from administrative leave would be an excellent first step.


Anonymous said...

So let me get this right - this attorney was put on administrative leave by her employer for NOT reporting to the ethics board her ethical concerns she had against her employer? This is beyond laughable. It's like having your employer punish you for failing to report them to the IRS if you think they're cheating on their taxes.

Anonymous said...

Doesn't the AG represent the Lawyer's Board? So Ms. Lawler was supposed to report her concerns to a board that seeks its legal representation from the person she is complaining about? Nice.

Anonymous said...

I am one of the attorneys who left the AGO for some of the reasons/concerns raised by Ms. Lawler. It is common knowledge in the Office that both Lori Swanson, as well as her predecessor, would often first decide what kind of lawsuits they wanted to bring (commonly based on whatever topic is hot in the media or being pursued by AGs in other states), assume that there MUST be someone operating in Minnesota to sue in this area, direct the staff attorneys to find a party to sue (or give them the names of parties to sue) and file a complaint within X time period and then orchestrate a big media splash and press conference to publicize the matter. While some people might applaud this as being "proactive," I had the same ethical concerns expressed by Ms. Lawler. Of course, my response to these questionable tactics was to simply leave the Office rather than "stir the pot" so to speak and be subject to involuntary reassignment or other retaliation. It is no wonder that the consumer enforcement division at the AGO (now "complex litigation") had 100% turnover in staff attorneys AND managers while I was employed at the Office. Now the staff attorneys who make up that division are primarily very young lawyers who don't have the experience or courage to challenge or question what they are being told to do, with the exception of Ms. Lawler. Kudos to Ms. Lawler for speaking out even though it will obviously cost her her job.

It is sad that the latest public vetting of the problems at the AGO aren't going to change anything (sorry Mr. Cohen). Believe me when I say that Swanson et al. have convinced themselves that they aren't doing anything wrong despite the continued hemorrhaging of attorneys and negative publicity and will defend their tactics to the death (otherwise known as the 2010 election year).

Mark Cohen, editor said...

While I agree with your point that actively searching for a lawsuit in a "hot" legal area is a "questionable" tactic, I don't think it rises to the level of an ethics violation unless you wind up knowingly filing meritless lawsuits to meet this mandate. I don't think that anyone's saying that's what happened here. Lawler was "uncomfortable" with the management practice of searching out lawsuits -- something that admittedly would not be on anyone's best practices list. (But also something I suspect goes on to differing extents in other AG's Offices. )

As for whether or not things will improve, you are right that the history of the office would indicate no. But one can always be hopeful that an AG will rise above the expected.

Anonymous said...

Thank you Mr. Cohen for your thoughtful editorial post. I second your sentiments.

Anonymous said...

Mr. Cohen--Having worked in the Minnesota AGO for several years (but no longer), and having worked on multistate cases, I appreciate what you are saying. AGs, like all politicians, prefer favorable press, and I agree that they sometimes may use less than "best practices" in terms of how they pick what cases to file, if they think they can get good press as a result.

However, I also think that Hatch and Swanson have taken that approach to a whole new level, and not a better one. Their attitude towards cases, in my observation, is much like their attitude towards their attorney staff--we were all interchangeable, like cogs in a wheel. And if one cog happened to manifest any independent thought, judgment or to protest (like Ms. Lawler), then the response was to simply remove the offending cog (or get it to quit) and replace it with another one that would do what it was told to do.

All too often, the Hatch and Swanson regimes have the same cavalier, wholly self-serving approach to case management--once the press glamour wore off on a case (which pretty much happened the day it was filed), then upper management lost interest, tended to not want to put appropriate resources towards it, and often drove the case towards settlement to just get rid of it. This didn't happen every single time, of course, but it happened way too often.

And that's what I hope people understand about this union issue--it's not just an employment law issue, as one high-ranking DFL'er has reportedly stated, but it's an issue about the quality of legal services that the State of Minnesota is getting from its own, in-house legal staff. Because if the staff attorneys aren't allowed to act like attorneys and exercise their professional judgment on behalf of their "client," which ultimately, is state agencies and the people of Minnesota, then the people aren't being served. No matter how many cases the AG files in a month.

Anonymous said...

Mr. Cohen: You advocate an approach that a decent person would pursue. Listen, try to evaluate fairly the information provided and act in the common interest.

Nothing, absolutely nothing, about Hatch and Swanson has EVER operated remotely like this. Let me repeat- Nothing. These two evaluate all communications in terms of maximizing their power and leverage over others, and aggrandizing more power for themselves. Once you get that, their seemingly self-defeating actions make sense because they assume everyone else is acting from the same motivation. Attack, smear and intimidate are the M.O. for pretty much every interaction. There are no allies except those that can be controlled, and those only for as long as they play the doormat.

The appropriate response from the media is to stay on this story and start asking more questions. How are new attorneys hired (answer: to maximize the chance of obedience, fear and reduced chance of union affiliation, rather than by merit)? What happened when all those experienced attorneys left (answer: puppy lawyers dominate in the "complex" litigation division)? Start probing and pushing back the curtain.

Otherwise, your obvious decency looks simply naieve. Sorry-- tough assessment, but accurate.

Mark Cohen, editor said...

Don't confuse calling on public officials to do the right thing with not holding them accountable if they don't.

You do bring up an interesting point about self interest. By suspending Lawler for a trumped up, hypertechnical reason, Swanson has needlessly opened herself up to a charge of retaliation -- and a slew of bad media. The Strib showed no indication it was even going to cover any of this until she did that.

You would think, if for no other reason than self interest, she would have avoided this scenario. She has given the union cause a martyr.

Anonymous said...

I am really sick of the media's approach to this story. It feels like only one side of the story has been getting heard from the beginning. Any time someone from the AG's office tries to say that things aren't bad, that they enjoy their jobs, that they have never been pressured to do anything unethical, have never felt pressured not to join a union, their opinion is discounted and they are accused of being pawns of Lori Swanson. Meanwhile, anytime an employee complains about Swanson and claims that horrible, rotten things are happening in the AG's office, their comments are taken at face value and no one suggests that they might be a pawn of the union.

As an employee of the AG's office, I can only speak from my own experience. I have not experienced an atmosphere of anti-union intimidation. I have never been pressured to do anything unethical. In fact, when representing client agencies, I have more freedom to question what my client wants me to do than I would in private practice because I don't have to worry about losing clients if I do the right thing. I have never been forced to sign something that I didn't feel comfortable with. When I have disagreed with my boss's approach to a case, I have been free to give my opinion. Sometimes my boss changes her mind. Sometimes I change my mind. If we can't reach an agreement, she tells me that I don't have to sign the pleading if I don't feel comfortable doing so.

With regard to the unionization discussion, I will admit that I feel uncomfortable talking about it with my colleagues. This has nothing to do with AG Swanson and everything to do with the fact that many attorneys don't want a union and many attorneys do want a union and both sides feel very strongly about it. I like my colleagues and I don't know which opinion they hold so I avoid talking about it with them in order to avoid conflict- much like I would avoid discussing religion or politics with co-workers. Personally, I don't want a union. I don't feel like I need one to represent my interests and I don't want to pay union dues. If someone asks me outright for an opinion, that is what I will tell them. I'm not going to seek out conflict by bringing it up and I'm certainly not going to force my opinions on my colleagues.

When I read the things that Lawler said to the media, I was shocked. My first thought was that she deserved to be fired and if she worked for a private employer, she probably would be. Instead of bringing her concerns to her managers or to the professional responsibility board, she decided to bring them to the media. She said things that implied that the other attorneys in the office were not acting ethically and were not doing their jobs properly and she seriously undermined the credibility of the office-- an action that could have an impact on pending and future cases. What she did could have been hugely harmful to the office.

If the union has a beef with Lori Swanson, I wish they would stick to attacking Lori. It seems like many of their attacks contain statements that imply that the attorneys working in the office are not capable, are not doing good work, were hired for reasons other than their ability, and are acting unethically. I find these statements highly offensive and I find it odd that they would take this approach since they would ultimately need to win over a majority of the attorneys in the office in order to get a union started. How does insulting those attorneys help their cause? I think they make the statements because they know that Lori won't respond to attacks directed at her specifically, but she will respond when she perceives that the attorneys working for her are being attacked or when she perceives that the credibility of the office is being attacked. It is a way to draw her out.

Anyhow, I don't even know why I am bothering to post. Someone will just come along and say that I am a pawn or that I am Lori or Mike (I am not) or that I obviously don't have any ability to stand up for myself and speak my own mind- that I only meekly do what I am told. Thus, my opinion doesn't count or doesn't matter. I guess I just felt the need to post because this thing keeps going on and on and I am tired of reading only one side of the story.

Anonymous said...

Mr Cohen, I hope you aren't trying to suggest you are covering this issue in an objective manner. I am shocked at the anti-AG nature of your blog.

The things Ms. Lawler said about the AG's office in the media, without ever making any good faith effort to communicate with office management, make her administrative leave more than appropriate. In my opinion, the AG showed great restraint in not firing her immediately. With her comments, Ms. Lawler has undermined a great deal of the efforts of the AG's office. No office, public or otherwise, should continue to retain that kind of employee.

Mark Cohen, editor said...

The proferred reason for the suspension strikes me as so weak that it creates a problem for management. I suspect that no one has ever been suspended from the AG's Office for the reason of not following proper channels for filing an ethics complaint.

That said, I also understand why management does not want employees to go on the radio and provide criticism of the management of the office. If, as you seem to imply, that was the real reason for the job action, then that's the reason management should give. I suspect the reason it doesn't is that it is worried about the potential liabilities under labor laws for firing a union organizer for that reason.

As a manager as well as a journalist, I can see management's dilemma here. However, your approach comes across to me as unduly harsh and only likely to further inflame the office. Perhaps its time to tone down the hard-line approaches.

Anonymous said...

To the poster above who says he is with the office and doesn't want a union:

I'm one of the lawyers in the office who is trying to form a union. I understand where you are coming from, but I have some observations that I hope you'll consider.

First, the people who are attempting to form a union in the office didn't decide to do it because they hate Lori. It just isn't a political issue. They chose unionization because they felt that it offered a framework to discuss some of the concerns that many staff members from the office share, and that they didn't feel they could raise without losing their jobs. Having seen some of their colleagues fired or forced out, its an understandable urge.

Second, while you may not want a union, last year a majority of your colleagues voted that they did. Lori's response was to ignore the inquiry the BMS sent her about it after it received the cards. Not only that, but afterwards, and even after she got a legal opinion about organization rights, Lori went on MPR's Midmorning show and said she wasn't aware of the issue at the BMS, wasn't aware of the majority, and wasn't even aware of the card collecting campaign in the office. This concerns me greatly, because it seems like part of her general strategy of ignoring problems, which is what led to the unionization effort in the first place. Plus, for an elected constitutional officer, and the top law enforcement officer of this state, to so blatantly lie repeatedly when directly questioned about something shocks me. Even if you don't think that a union will benefit you, aren't you just a little bit concerned by this?

Third, while you say that you feel fine about your work in the office, there are many of your colleagues who don't, who feel targeted and unable to provide good advice to clients. They feel they have been asked to do things they find ethically questionable. Even if you haven't been placed in that position, your day may come. And when it does, it would be great for you to have just a little bit of job protection backing you up as you weigh what needs to be done. And, don't you think that your colleagues deserve this too?

Fourth, the people organizing the union have never said that any of the new hires aren't qualified. Why would we do that? We like the new lawyers and want them to join us. No, this is something Lori has said we said, because she doesn't want them signing union cards. I encourage you to think very critically about the information Lori provides to you.

And as for Amy, she's not saying anything that hasn't been said before by pretty much every person who has worked in her unit. She's just the one with the guts to say it out loud.

Anonymous said...

To the current AG employee poster: it does not help your claim that you are not a pawn of the Office when you've posted in the middle of a workday and the Office blocks internet access to message boards (well, unless the powers that be specifically provided access to you, like they did about a year ago with all of those postings by then AAGs on this blog - including a supposed posting by an AAG who was actually in a meeting with the legislature at the precise moment his "post" in support of Lori appeared on this blog. No shocker that he decided to leave the Office not long thereafter.) But I digress. As a former AAG myself, I knew of, and still know of, attorneys who enjoy their work there and have not been put in uncomfortable or untenable positions by management, and I fervently hope that continues to be the case for them (and apparently you). However, that usually wasn't the case with attorneys in the divisions with the AG as the "client" and it is this kind of situation that Amy Lawler is speaking out about. While I don't agree with her rather rash decision to publicize this via the media, it's not like she's the only former employee who has this concern - MPR's article identified a former Charites investigator, Jody Wahl, who had the same concerns as Lawler. But I guess folks can just tag Jody as a "union pawn" since she was also active in union organization efforts. The incredibly transparent pretext reason for her ejection from the Office after 24 years of service was elimination of her position. So apparently there are NO investigators in Charities and they're not needed. Ironically, I guess that's going to make it a bit harder for adequate investigations to occur before bringing suit. Just my $0.02.

Anonymous said...

To the person who doubts my sincerity of not being a pawn, I posted on my lunch break on my own computer. I usually take late lunches.

Mark Cohen, editor said...

I would note that subsequent press reports have made clear that Lawler has a number of ethical complaints regarding goings on at the AG's Office. To see her enumeration of those complaints, click here. I would also reiterate that I am unaware of a single other case where someone at the AG's Office has been suspended for the purported reason of not following the "proper channels" for filing an ethical complaint.

Anonymous said...

I was looking at the MN Attorney General's site and I was surprised that Swanson's salary is $114,000/year. It seemed low for a position like that. That lead to me wonder what the salary range is for attorneys in the AG's office. Does anyone here know? How much does Lawler probably make per year, for example? Are we talking $50K? Thanks.

Anonymous said...

To current and former AGO attorneys:
I'm curious about the state of the office. How many attorneys are employed by the AGO--around 100? Is it true over 50 attorneys have left in the past year or is that an exaggeration by the press? Is the office hiring new attorneys to replace those attorneys or is it a matter of "downsizing?" Has your workload tripled because of these lost attorneys? I cannot imagine how the work of over 100 attorneys is being done by half that many now--or perhaps they are restocking quickly.