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Thursday, May 29, 2008

The Mengler Report: An Analysis

Having perused University of St. Thomas School of Law Dean Thomas Mengler’s full 19-page report on the alleged ethical improprieties at the Minnesota Attorney General Office, I can break the findings into two distinct parts – one I agree with, and one I don’t.

Regarding the allegations against AG Lori Swanson and Deputy AG Karen Olson, Mengler (photo on right) correctly concludes that the necessary evidence to support such charges has not been brought forward. The one instance that (now former) assistant AG Amy Lawler had first-hand knowledge of -- being told to find and a file a mortgage-fraud case within an extremely tight time frame – does not rise to an ethics violation without some sort of evidence that this was to be done regardless of whether the claim had merit. Olson’s alleged statement, “Don’t worry, we’ll make it survive a Rule 11,” doesn’t cut it. If Olson had said the opposite (i.e. “Don’t worry if it doesn’t survive a Rule 11”), you’d have much better grounds for an ethical complaint. Moreover, the fact that Lawler was able to find and file two claims she believed to be meritorious within the designated time frame demonstrates that management's request of her did not require a breach of ethics. The rest of Lawler’s ethical allegations were based on statements allegedly made third parties who declined to come forward (at least for Mengler’s investigation anyway). Based on the evidence he had before him, Mengler’s finding with regard to Swanson and Olson stands up to scrutiny.

However, I strongly disagree with Mengler’s finding that Lawler’s conduct in going public with her concerns was a violation of the professional rules governing lawyers (specifically Rule 1.6, which prohibits lawyers from revealing the confidential information of a client). Viewing the public as the AG’s “client,” Mengler finds Lawler’s conduct in revealing her concerns publicly may have had a detrimental effect on that client by compromising the AG’s ability to represent it.

The logic strikes me as circular. If the public is your client, can you really be breaking your confidentiality to your client by expressing your concerns to that client? Moreover, Lawler went public not with the idea of hindering the AG’s representation of the public, but because of her conviction (rightly or wrongly) that management’s practices were doing the public a disservice. I think Mengler’s finding regarding Lawler fails to take into account the important public function played by whistleblowers. (I suppose, for example, an in-house counsel at a company like Enron who goes public with her concerns could be viewed as doing as doing something detrimental to her "client," but I doubt if anyone would seriously propose such a person be prosecuted for violating Rule 1.6. )

As far as the AG’s Office goes, I will wait until I see the Legislative Auditor’s independent report before reaching a final judgment on the merits of the various managerial concerns Lawler expressed when she went public. I only wish the AG had done the same rather than summarily firing her.


Anonymous said...

I'm amazed by the fact that Mengler, a law school dean, has carelessly torpedoed the career of a bright, young, and above all courageous, attorney by coming to such a damning conclusion based on an admittedly limited investigation that yielded little or no reliable information. It was irresponsible and inappropriate for him to play the role of the PR Board and to publish the report, which will forever follow Amy Lawler wherever she goes. To me, such actions violate my personal ethics, if not the Professional Rules. Perhaps it's "General Swanson's" final revenge?

Anonymous said...

Amy Lawler is my hero.

I am an experienced attorney who served in the AG's office for part of Hatch's term and witnessed both Hatch and Swanson in action. I have talked to many other former AG attorneys who, along with me, applaud Lawler for her courage, integrity and ethical bearings. We were not the least bit surprised to read her report that Swanson had directed her to file lawsuits the following week without actually knowing whether there was evidence showing that the abuses in question had occurred in Minnesota. This "ready, shoot, aim" approach was typical for Hatch and Swanson. Those of us who worked with them heard variations of this many times. Hatch, in particular, would impulsively direct staff to take action for Hatch’s political purposes, with little regard for whether the facts or law supported his claims. The main thing was the press conference.

I am so disappointed by Mengler's "investigation," and that a generation of St. Thomas law students may gain their ethical orientation from him, rather than from someone like Ms. Lawler. Mengler swallowed Swanson's spin hook, line and sinker. Does it occur to him how unreliable it is to get information from staff still working for Swanson? (Read Eric Black’s MinnPost stories and you’ll understand why.) And there is a real difference -- an ethical difference -- between instructing your staff to file two lawsuits the following week and telling them to investigate whether these abuses are occurring in Minnesota and, if so, file appropriate law suits. The second is ethical; the first is not. Which of Swanson's young staff members will have the courage to stand up to her and say that instructing your staff to bring X number of law suits before you do your investigation is irresponsible? Well, now there is one less staff member with such courage. And apparently Mengler is fine with that.

Mengler’s determination that Lawler herself acted unethically is not only utterly gratuitous, but also wrong headed for reasons others have explained. Why he would go on to make such a determination is simply incomprehensible. I believe that most responsible people in the legal community will realize that Ms. Lawler has demonstrated her high character and legal abilities.

Many of us are deeply saddened by the loss of talent from the AG’s office (now including Ms. Lawler), the loss of stature of that office and the office’s much-diminished ability to provide quality legal services to the state. Hatch, and now Swanson, have been a scourge on the state.

Anonymous said...

Mengler was brought on board for two reasons,and two reasons alone:

1. To give Swanson/Hatch cover to fire Amy Lawler,
2. To serve as a hedge in case the real investigation by the legislative auditor finds against Sawnson/Hatch in his review (Nobles' investigation will then no doubt be cast as a witch hunt.)

After conducting an "investigation" under circumstances no sensible person would agree to, he has obligingly delivered on #1 -- with a gratuitous shot to her reputation as well.

Isn't it against state law for the AG to be distributing personnel-related information about a staff member? Wasn't Lawler suspended for not following the "office policy" of having the OLPR handle ethics-related matters? If such a policy exists, why is Mengler issuing ethics opinions?

Anonymous said...

I, too, take Dean Mengler's report with a proverbial grain of salt. And isn't he (or the Office, or SOME lawyer) now required to report Amy Lawler's ethics "violation" to the Lawyer's Board under Professional Conduct Rule 8.3(a)("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
")? I'm sure neither he nor the Office has - they couldn't risk the Lawyer's Board coming to a different conclusion. Give me a break.

Anonymous said...

This is a long established Hatch tactic, now used by Swanson. Appoint a Hatch crony/tool to "investigate" a Hatch/Swanson ethical fix and, surprise!, "clear" Hatch/Swanson. Remember the "investigation" regarding the "sense of the staff" by Lord and Lebedoff? There are many more examples. It is breathtaking in its cynicism and even more breathtaking in that the local fishwraps such as the Strib publish the exoneration as if it were legitimate. Compare the journalism at the Minnpost to the Strib and you wonder why the Strib hasn't filed bankruptcy yet. It filed journalistic bankruptcy long ago. As for Mengler, well, let's hope he is only just a fool.

Anonymous said...

It must be quite daunting for Amy Lawler to be on the job market right now. I hope for her sake that the people who think she is a hero will do what they can to help ensure that she lands safely on her feet.

Anonymous said...

Not sure if anyone follows these older posts. But here is something from WSJ law blog on topic:

Fortune Mag: Are Law Profs Trading Bad Advice for Big Bucks?

Posted by Dan Slater
Back in February, when we spoke to Stanford’s Lawrence Lessig about his decision to refocus his scholarship, from copyright to eliminating the ill-effects of money in politics, he also mentioned that, “in the academic context, there’s corruption in the way that testimony is being bought, which changes how people research.”

We found the allusion provocative, coming as it did from Lessig, a career law prof. At the time we wondered whether there were other profs out there decrying the same perceived problem. Apparently there are: On Fortune magazine’s Web site, Roger Parloff reports that, in a forthcoming Stanford Law Review article titled “The Market for Bad Legal Advice,” Columbia law prof William Simon takes aim at colleagues who are becoming “enablers of pernicious… practices” by trading bad advice for big bucks.

In particular, Parloff’s piece highlights an accusation that Simon, in his law review article, levels against Cornell law school’s Charles Wolfram (pictured). When former Enron CEO Ken Lay was approached by whistle-blower Sherron Watkins about the possibility of an accounting scandal, Lay went to Vinson & Elkins, its outside firm, for a “preliminary investigation.” V&E reported back that all was fine and good, six weeks before Enron blew up. When called before a congressional committee to answer for its legal opinion, it produced a letter from Wolfram blessing its investigation.

In an interview, Wolfram told Parloff that while Simon’s article “makes some interesting points,” it greatly exaggerates any problem that might exist. “[Simon] seems to suggest that giving favorable testimony for a law firm is facilitating future wrongdoing by the law firm,” said Wolfram, who charges $650 an hour. “I think that’s unrealistic. Most of the testimony I’ve done is after the plane crash - the pilot having survived and crawled out of the fuselage. My testimony is that the pilot did not act negligently. [Simon] overinflates its importance.”