Minnesota Lawyer Blog

Altman Weil has come out with the results of an interesting survey on diversity in law firms. The “Altman Weil Flash Survey on the Diversity Director Position in Large Law Firms” reports that 58 percent of participating law firms have a designated diversity manager or director, up 8 percent from 2007, and 13 percent from fall 2005 when the first diversity flash survey was conducted.

The survey also found that 100 percent of participants report having a diversity committee in their firm, up from 96 percent in the prior year. (The survey canvassed large U.S. law firms in the AmLaw 200 and includes responses from 80 participating firms collected in March and April 2008.)

Here in Minnesota, many law firms are following suit. A lot of the larger firms have already implemented diversity committees, and at least one, Robins Kaplan Miller & Ciresi, has hired a diversity manager. E. Marie Broussard (at right) joined the firm earlier this year. She spoke with Minnesota Lawyer about the importance of her position in February.

“The most important thing a diversity manager does is call on the conscience of the people in the organization,” she said. “The law is especially resistant to change. My job is to make sure change happens within the people within the organization.”

The importance of developing and promoting diversity within law firms and the legal community in general can’t be overstated, particularly in Minnesota where we have some difficulty attracting and retaining diverse lawyers. The formation of diversity committees and the hiring of diversity managers are clearly positive steps towards those goals.

Joanne Colan over at Rocketboom tells us that on this day in history, the Greeks entered Troy with their Trojan Horse. We all know how that turned out, hence the saying, "beware of Greeks bearing gifts."

But if you replace "Greeks" with "attorney general offices" — then delete the rest — this phrase might be as apropos now as it was in 1184 B.C.

Where's my point? E-mails recently obtained by the Wisconsin State Journal show that a top detective's final year in the Wisconsin Attorney General's Office was like warfare.

"The last year has been really ugly for me and this retirement was pretty much shoved down my throat," wrote Jim Warren, who led Wisconsin's Division of Criminal Investigation for 10 years, to another agent. "I would have loved to stay on but the constant war with the current administration just got to be too much," another message reads.

Sound familiar?

It’s the kind of distinction that nobody is happy about, not even defense attorneys.

According to the National Survey on Drug Use and Health, Minnesota ranks third in the United States when it comes to the percentage of adults who admit having driven under the influence of alcohol over the past year. Almost one-fourth of those surveyed owned up to driving while impaired, putting Minnesota only “behind” North Dakota and Wisconsin. Nebraska and South Dakota are Nos. 4 and 5 respectively.

That’s not surprising, given that the Minnesota Department of Public Safety said the state tallied a record number of drunk driving arrests -- 41,951 -- in 2006.

The Upper Midwest is becoming notorious as a hotbed of excessive alcohol consumption and drunk driving, even after decades of warnings and aggressive campaigns against such behavior.

Even with the recent controversy over the use of the Intoxilyzer in drunk-driving cases, it looks like Minnesota’s DUI attorneys unfortunately will have plenty to keep them busy in the foreseeable future.

There is an item on the Findlaw Greedy Associates board implying that the Minneapolis law firm of Oppenheimer Wolff & Donnelly may be downsizing attorneys and whole practice groups. These rumors crop up about different local firms from time to time on the Internet and elsewhere, and often prove baseless. This particular rumor gained some traction, so we placed a call to the firm's chair, David Potter, to see if there was anything to it.

"Yeah, I heard that too," he said with a laugh, adding the rumor was completely unfounded. The firm has not lost any practice groups or had any major losses of attorneys since its restructuring in 2003, he said. He also said no staff cuts are either now occurring or planned.

In fact, Oppenheimer is on track to have a pretty good year, according to Potter. While mergers and acquisitions and general corporate work are down -- as they are elsewhere -- litigation has really taken off, he said.

"I think we are in a good spot," Potter stated

Potter also told us that Brad Keil will remain as the firm's CEO for the indefinite future. Oppenheimer has a unique management structure -- a CEO who gives up his/her practice to focus exclusively on the firm's internal operations and a chair who maintains a practice while focusing on the external elements of the leadership role. Keil began his current tenure as CEO last August when Tonia Teasley Schulz left the CEO post after less than a year to join the The Emmerich Group, a local consulting company. Keil -- who had been Schulz's predecessor as CEO -- stepped back into the role when Schulz announced she was leaving. It was unclear at the time whether this would be a stop-gap measure or something more permanent. Apparently, it's the latter.

"The management structure has worked well," said Potter.

Considering that good faith on the part of insurance companies has been so much in the news lately, a recent opinion from U.S. District Court Judge James Rosenbaum merits a mention. In Babinski v. American Family Insurance Group, the judge refused the insurer’s attempt to limit its exposure to a fraction of the policy limits and socked it with a hefty attorney fee award of $35,712.33.

Donald Babinski’s son and daughter-in-law were killed in an auto accident when the son was driving Babinski’s truck. The daughter-in-law’s estate sued the son’s estate, of which Babinski was the personal representative. Donald Babinski had purchased $1 million in insurance coverage from American Family.

After sending a letter acknowledging the existence of liability coverage, American Family later argued that it had to pay only a maximum of $30,000 under a “household exclusion” or “drop-down exclusion.” Rosenbaum quickly disposed of the so-called household exclusion, whereby the policy arguably would not cover any person related to and residing in the household of the operator of the car, observing that Minnesota has held such exclusions invalid since 1979.

He also declined to enforce the drop-down exclusion, which would exclude coverage over the liability limits required by law, and mean the insurer was responsible for only 3 percent of the policy’s face value. Rosenbaum said the insurer used “stealth language” and the policy was vague, ambiguous, misleading and fell far below any ordinary consumer’s reasonable expectation. “This is a $1 million policy, and so it shall remain,” Rosenbaum ordered.

Apropos of absolutely nothing legal, there was a great American Experience on PBS last night about Roberto Clemente, the legendary right fielder who died in a plane crash in 1972 while en route to help earthquake victims in Nicaragua. In addition to being a great baseball player (3000 hits!) and a humanitarian, he was a role model and a barrier breaker (e.g. first Latino inducted into the Hall of Fame, although, sadly, it was posthumously). The American Experience is really worth catching if you have the chance. In the meantime, if you want to read more about the show, Brian Lambert over at Lambert to the Slaughter had a nice sum up yesterday.

There is a very interesting piece on Shakopee attorney Sam McCloud worth checking out in today's Strib. McCloud is a bit of character to say the least. With his cowboy look -- replete with hat and boots -- one is left with the distinct impression that he identifies a little too closely with the old horse-ridding "rustic sheriff" who is his namesake played by Dennis Weaver in the '7os TV show, "McCloud."

McCloud (the real-life attorney, not the fictional TV lawman) is an entertaining presenter. For example, I recall him using a number of of colorful colloquialisms when I listened to his lecture on bail laws last year at the Minnesota CLE criminal law institute. His recent legal troubles -- which came to a successful conclusion for him in February -- have only added to his mystique.

In addition to bail laws, McCloud has made a bit of a name for himself in the DWI field. Coincidentally, Minnesota Lawyer has a story this week on the DWI source code controversy triggered by an unpublished Court of Appeals case that was handled by McCloud and his partner, attorney Carson J. Heefner. Lest you think McCloud's partner is less colorful, Heefner had this to say about the AG's Office's decision last month to file a federal lawsuit against the maker of the Intoxilyzer for refusing to provide the source code: “The AG’s Office finally got off its ass after 18 months and filed a lawsuit. It’s a little too little a little too late.”

Sheesh. They don't mince words over at McCloud and Heefner, do they? It doesn't take Columbo to figure out that the watercooler talk over there must be pretty interesting ...

Governor Tim Pawlenty last Friday signed into law the closely watched Good Faith bill. The new law puts insurers who fail to make a good-faith settlement offer when their liability is reasonably clear on the hook for up to $250K in damages and $100K in attorney fees. The caps were added as part of a legislative compromise. In political parlance, the new law has teeth, but not fangs.

Here’s an example of how the new law might work. You are sitting in traffic on a clear day, and an SUV rams into the rear of your car. The driver gets out, and says, “I’m so sorry, it’s completely my fault. I was sending a text message and drinking a cup of coffee.” The driver has $50K in coverage, and you have another $100K in underinsurance coverage. Your medical bills and related costs exceed your coverage, totalling $250K. The driver’s insurer pays you his full $50K policy limit. But your insurer, trying to save a few bucks, only offers you $75K in UIM limits. You go to trial, and, as predicted, the jury awards $250K.

Under the new good faith law, your insurer must pay you not only the full $100K limit of your UIM policy, but also an amount equal to half the amount your damages exceeded the amount offered by the insurer (i.e. $250K – $75K offer = $175K/ 2 = $87.5K). Thus, you are getting $87.5K more than you would have been entitled to receive under the policy because of the good-faith violation. In addition, you can recover up to another $100K in attorney fees.

With the caps, the amounts involved are not massive. But they are enough to change the math when the bean counters calculate whether or not it’s worthwhile to dicker with someone clearly entitled to benefits.