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Friday, May 30, 2008

State GOP declines to endorse judges at convention

The state GOP decided not to endorse any judges at its convention in Rochester. The Judicial Election Committee recommended that no endorsements be given because the committee did not have time to properly vet judges. The committee also told delegates that none of the judges up for election in 2008 -- including the two Supreme Court justices and seven Court of Appeals judges -- had applied for an endorsement. Likewise, no potential challengers for judicial seats applied for an endorsement, and the committee was unable to identify at this point who the challengers will be.

In making its recommendation that no endorsements now be given, committee representatives expressed concern with judicial activism. In a rebuff to judicial-election reform efforts in Minnesota, they also criticized any attempt to curb the right of the people to elect judges, "the only way we have left to hold judges accountable."

The decision not to endorse does not end the GOP's involvement in judicial elections. The committee said it plans to develop a "scorecard" to rate judges and judicial candidates on such things as temperament and fairness. The committee described its work as "ongoing." The committee also called for anyone who has information about "judges out there involved in criminal acts" to come forward and let it know.

Seven new opinions issued on Chief's last day

Today is Chief Justice Russell Anderson's last day on the court (unless he works over the weekend), and the bench sent him home in style with seven opinions issued this afternoon. They are available at the court's web site, but here's a synopsis, listed in the order in which they are listed by the court. The court:

Remanded for resentencing in a case where an upward departure was based on uncharged criminal conduct (State v. Jackson);

Said that a plaintiff alleging sexual harassment claims under the Minnesota Human Rights Act based on sexual harassment by a supervisor is not required to prove that the employer knew or should have known about the harassment and failed to take timely and appropriate action (Freiler v. Carlson Marketing Group);

Said that where a child had been struck with a small paddle about 36 times there was no showing of physical or mental injury amounting to “physical abuse” under the child protection statutes (In the Matter of the Welfare of the Children of: N.F. and S.F., Parents);

Reversed a termination of parental rights case because substance abuse alone does not make a parent palpably unfit and the county may not unilaterally decide that reunification efforts would be futile (In the Matter of the Welfare of the Children of: T.R., T.M., P.P. and B.H., Parents);

Reversed summary judgment for a bar in a dram shop case where a person chose to evade arrest by jumping into a river and drowned (Osborne v. Twin Town Bowl);

Said that federal Medicaid law limits the scope of recovery from the estate of a nonrecipient spouse and that Minn. Stat. sec. 256B.15, subd. 2 is partially preempted to the extent that it authorizes recovery from the surviving spouse's estate of assets in which the deceased Medicaid recipient did not have a legal interest at the time of death (In re the Estate of: Francis E. Barg, a/k/a Francis Edward Barg); and

Said that the rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation (State v. Shriner).

ABA helps lawyers help domestic abuse victims

Yesterday, the Minnesota Supreme Court affirmed the first-degree domestic-abuse murder conviction of a man who stabbed his estranged wife 63 times. Two days earlier, the American Bar Association released a “tool” that lawyers can use to spot domestic violence.

The Minnesota case involved Moua Her and Sheng Vang, who were married in January 2000. Vang moved out of the home a year later due to “marital difficulties,” including alleged physical abuse. She eventually moved back in, but the domestic problems continued, ultimately resulting in a call to the police in March 2004. Three months later, Vang was found dead in the garage of Her’s home.

Cases like this one exemplify the tragedy of domestic abuse, but there are things lawyers can do to help.

The ABA Commission on Domestic Violence’s “Comprehensive Issue Spotting: A Tool for Civil Attorneys Representing Victims of Domestic and Dating Violence, Sexual Assault and Stalking,” is a client-centered resource to help lawyers new to representing victims of these crimes provide knowledgeable assistance to their clients. According to a press release announcing the guide, it will enable lawyers to identify and become familiar with the wide-range of legal issues facing victims, and provide well-informed legal advice and referrals.

The guide takes a two-pronged approach in addressing such critical areas as protection orders, child custody, immigration, employment and housing. First, it provides a list of questions that lawyers can use to gather information from their clients. Second, it identifies the type of help that victims need and asks lawyers to research and list the local resources for their clients.

Copies of the tool are available here via download from the commission's website.

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.

Minnesota Lawyer approbates Lockridge speller

Kudos to 13-year-old He Li of Eden Prairie for nailing "approbatory" during this morning's preliminary round at the Scripps National Spelling Bee.

(ap•pro'•ba•tory adj. [rare] showing approval, commendation or praise)

Li is an eighth grader at Central Middle School, and is sponsored by Lockridge Grindal Nauen law firm in Minneapolis. The correct spelling gives Li a comfortable score as he heads into the quarterfinals this afternoon.

Hardcore Bee junkies can live stream today's competition from 1 to 4:30 p.m. at ESPN360.com. The finals air tomorrow night on ABC.

UPDATE: After a valiant effort, Li missed the word "senectitude" (the final stage of the normal life span) in Round 3 of the quarterfinals. The word doesn't even appear in my trusty Webster's New World College Dictionary, but apparently Scripps prefers a more robust reference book — so it doesn't get too, you know, easy.

The competition's remaining Minnesotan is Catherine "Cat" Cojocaru of Holy Spirit Catholic School in Rochester... Go Cat, and congratulations Li!

Can the electronic media be ignored?

I was a bit amused and then intrigued by some comments made by former Attorney General Mike Hatch posted yesterday on MinnPost. The Hatch comments were in response to a request for an interview from MinnPost's Eric Black, who was writing a piece on Hatch's role in the current managerial situation at the AG's Office. (Actually, it's the first part of a two-part series. UPDATE: Click here for part 2.)

Hatch, who now is in private practice in Minneapolis, had apparently scheduled an interview with Black, but then backed out at the last minute. Rather than just giving the typical Marsha Brady excuse (i.e. "Something suddenly came up"), Hatch sent a rather lengthy explanation as to why he was cancelling and not commenting, during the course of which he did, in fact, comment.

Here is part of what Hatch sent to MinnPost: "I had misinterpreted my secretary's message, and thought that you were with the Rochester Post. ... [I]t is my policy not to interview with bloggers. While I should stop right here, I feel chagrined in having agreed to a telephone interview with the Rochester Post, finding out that in fact you represent a blog called the Minnesota Post [sic], and having raised your expectations of an interview. ..."

First of all, I am not sure MinnPost is really a "blog" per se. The folks over at MinnPost may or may not agree with me, but I would say it's more of an online news service covering public affairs. These days, with people making comments on posted articles that may or may nor have previously appeared in print, it gets harder and harder to draw such distinctions. MinnPost is most definitely part of the electronic media -- a vastly growing segment of the news business. The migration of news online has hit daily general- circulation newspapers hard. Papers like the Star Tribune and Pioneer Press have shed some of their top journalists, who, in turn, have gone on to become part of the online media. Thus, in closing himself off to "bloggers," Hatch is losing access to some of the best and brightest in the business. Plus, many people born after 1980 will likely never get to see his pearls of wisdom if he confines himself solely to print. (Although most newspapers have a web presence themselves these days, so the dividing line gets kind of blurry.)

This is not the first time Hatch has professed a resistance to technology. Some may recall a little more than a year ago, while he was the director of complex litigation at the AG's office, he proclaimed that he didn't even have an e-mail address. (Ironically, that comment came as a rebuttal to allegations that Hatch had forced staffers to post positive things about the AG's Office on this blog). While I find it a bit difficult to believe that such a politicically well-informed man would have no idea what MinnPost is, I would suggest he acquaint himself with it and other online media.

As both a blogger and the editor of a brick-and-mortar (or at least paper-and-ink) newspaper, I don't really have a dog in this hunt. (Minnesota Lawyer has both a blog and a website, which makes us what the guys on Wall Street like to call a "multimedia" operation.) A part of me likes the idea of sources only talking to print publications because that's still the bread-and-butter of the news industry -- at least until someone figures out how to make online news pay. But realistically, I don't think it works to limit yourself to print in 2008.

They used to say that you shouldn't pick a fight with someone who buys ink by the barrel. These days, I would make the following addendum: "You also shouldn't pick a fight with someone who gets a lot of unique visits to his or her site." Not as catchy, perhaps, but an accurate reflection of changes in the industry.

Wednesday, May 28, 2008

More layoffs at another big national law firm

Above the Law and the WSJ Law Blog report that, in a nationwide layoff, 700-lawyer Sonnenschien Nath & Rosenthal has "separated" 37 lawyers and 87 others.

The separations were also spread across practice groups and offices. "Real estate and litigation were the practices most directly affected," firm chairman Elliot Portnoy told Above the Law. "They're two of the firm's largest practices, so numerically this is not surprising."

Sonnenschein does not have a Minneapolis office, although it does have a sizeable presence in Chicago.

I do like Mr. Portnoy's comment about the laid off individuals: "We will do everything we can to help the people we have separated, to give them as much support and compassion as we are able to provide."

So the question then becomes, how much compassion will the firm be "able to provide?"

AFSCME lashes back after Lawler firing

Unsurprisingly, Council 5 of the American Federation of State, County and Municipal Employees sent a statement last night to media outlets decrying the Attorney General's office's firing of attorney Amy Lawler following a report by University of St. Thomas Law School Dean Thomas Mengler (see below).

"In her termination letter, Attorney General Swanson gave no reason for firing Amy Lawler," the statement read. "Bad bosses routinely fire ethical workers for union organizing and whistle blowing. That’s why we have laws to protect workers from bosses like Lori Swanson and Alberto Gonzales. If these top attorneys trample the Constitution, then who will protect our rights?"

The next -- and perhaps final -- chapter in the AG/union drama will likely come with the impending release of a study of the office by legislative auditor James Nobles. Even if Nobles' report is critical, that will be offset by the relatively benign tone of Mengler's report. And with the Legislature out of session, any recommendations in Nobles' report won't be acted on by lawmakers until January, when the next Legislative session begins.

Tuesday, May 27, 2008

Lori Swanson fires Amy Lawler

The Star Tribune reports that Attorney General Lori Swanson has fired Amy Lawler, the young assistant AG who has been under suspension since she went public with accusations against her boss of mismanagement, union-busting and ethical improprieties.

The action reportedly came after University of St. Thomas School of Law Dean Thomas Mengler, whom the AG commissioned to look into the ethical allegations, issued a report finding "no evidence of any unethical conduct" by the AG.

Here are two interesting graphs from the Strib story;
Swanson released a statement saying that news coverage of Lawler's allegations earlier this year "ignored the fact that with only 90 days experience in the office, the attorney was in a questionable position to judge the procedures utilized by the office."

Brian Bergson, a spokesman for Swanson, said Lawler was terminated based on the report's findings and because of "other issues" that he did not identify.

Pawlenty again mentioned as possible VP

Conservative pundit David Brooks in today’s New York Times muses over possible vice-presidential picks and comes out strongly for John McCain to select Minnesota Gov. Tim Pawlenty—a Minnesota lawyer, so he has a rightful place on our blog. Brooks says, “Pawlenty, the governor of Minnesota, is one of the G.O.P.’s leading and most likable modernizers. The son of a truck driver (his mother died when he was 16), he is the godfather of Sam’s Club conservatism, the effort to reconnect the party to the needs of the working class. Pawlenty could help McCain play the Theodore Roosevelt-style role — reforming the nation’s institutions to fit a new century and epoch.”

On bridge reports and bargains ...

Minnesota Lawyer has an interesting article posted on its website about the I-35W bridge report. Gray Plant Mooty -- the private local firm that the Legislature hired to investigate the circumstances of the bridge collapse -- agreed when it took the job to cap its fees at $500K. After thousands of hours spent on the project -- and a big investment of IT-resources -- the firm submitted a 15-inch thick report critical of the Minnesota Department of Transportation.

If the state had paid the firm's hourly rate, the cost of the firm's involvement would have substantially exceeded the $500K fee. The state would have been more likely have had to pay somewhere in the $600K-$800K range. The firm said in an interview that it knew when it took on the project that the $500K would not cover its investment of attorney time and related costs incurred in generating the report. However, the firm also said it wanted to be involved both to make sure the investigation got done right and as a public service to the state.

This begs a question: Can the "uncompensated" attorney time the firm's attorneys put in once the $500K had been exhausted be classified as pro bono? There is no clear answer. Another way to look at it is that the firm actually gave the state "reduced rate" representation by bidding an amount it knew was too low to cover its usual hourly rate.

In any event, the firm certainly got a million dollars worth of marketing out of the deal. Its name was splashed in newspapers and television reports throughout the state as the "private law firm hired by lawmakers" to complete a report on the bridge collapse. The only real "negative" publicity the firm arguably got was from the Strib's Katherine Kersten ("News flash: Law firm hired by DFL legislators to investigate bridge collapse finds DFL was right!"). Kersten herself has a legal background and presumably knows that a major law firm is not going to risk its hard-earned reputation to slant a report for a client, but that did not stop her from implying that it would. Sigh.

Well, they say there is no such thing as bad publicity so long as they spell your name right. ... Now was that Gray Plant or Grey Plant? I keep forgetting ....