LAWYERS DRINKING DEPRESSION - Bench and Bar of Minnesota

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Official Publication of the Minnesota State Bar Association
Volume LXXIII Number III
March 2016
www.mnbar.org
Lawyers
Drinking
Depression
Reactions to the ABA/Hazelden Betty Ford study
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION
VOLUME LXXIII NUMBER III
March 2016
www.mnbar.org
4MSBA Blogs
Adding video to your site
By Terrie Wheeler
16
7President’s Page
The courage to change
the things we can . . .
By Mike Unger
8MSBA in Action
Changes coming to key MSBA
member benefits in 2016
10
What, Where & When
12
Professional Responsibility
CLEs & events
ur ethical responsibility to help
O
ourselves and our colleagues
By Judith Rush and Pat Burns
15Colleague Corner
‘I knew I wanted to come back’
Meet Greg Schieber
ONLY AT
BENCH & BAR
ONLINE
Campaign Finance
Disclosure in a
Citizens United World
Though U.S. Supreme Court
decisions such as Citizens United
and Wisconsin Right to Life have
dramatically refigured the campaign
money equation, those decisions still
afford room for further disclosure
requirements. Minnesota is among
the states whose legislatures have bills
pending on the subject.
By John R. McCullough
20
Show
Them
The Money
Medicaid Secondary
Payer Recovery in Injury Cases
My Lunch with
Justice Scalia
By Judge Richard H. Kyle, Jr.
A past president of the MSBA reflects
on his meeting with the late U.S.
Supreme Court Justice Antonin Scalia
during Scalia’s 2015 Twin Cities visit.
www.mnbenchbar.com
www.mnbar.org
The expansion of Medicaid benefits
under the Affordable Care Act has
spurred federal action to ensure that
states can more aggressively recover
costs incurred by the government in
injury cases. In Minnesota, where case
law has limited Medicaid cost recovery
in the past, attorneys handling Medicaid-related injury cases will need to
master a new statutory framework.
By Aaron Frederickson
24
On the cover:
Lawyers, Drinking,
Depression
A Problem That Isn’t Going Away
A landmark study by the American
Bar Association and the Hazelden
Betty Ford Foundation depicts a
profession troubled by problem
drinking, depression, anxiety—and
abiding fears about seeking help. In a
pair of interviews, Joan Bibelhausen
of LCL and study co-author Linda
Albert discuss the findings and what
the profession can do to address them.
28
Notes & Trends
Landmarks in the law
40
People & Practice
42
48
Member announcements
Opportunity Market
Classified ads
Books & Bytes
Legal publishing
March 2016 s Bench&Bar of Minnesota 3
MSBABlogs
MSBA
www.mnbar.org/blogs
The big trend in 2016
Adding video to your site
A
s more and more lawyers jump
into the web-based digital
video movement, the prospect of being the star of one’s
own video shoot can spark fear in the
hearts of even the most intrepid lawyers.
Consider the statistics:
n One of the top four online
marketing strategies for 2016
is more interactive content to
websites—including video
(Hinge Marketing, 8 Jan 2016).
n 80 percent of internet
users recall watching a video they
saw online. Of that number, 46
percent take action and make
contact based on the video (Video
Brewery, Jan. 2016).
n Over 60 percent of visitors to
your website will watch a video
before reading the same content
(ReelLawyers, January 2016).
The jury is in: Adding video to your
website will engage visitors and make it
more likely that prospective clients and
referral sources will call you. By Terrie Wheeler
Tips for creating interesting
and informative videos
Identify questions. Create a list of
questions that will help you convey
your approach and philosophy as well as
answers to the questions clients ask you
most frequently.
Give your videos a theme. Your
videos should fill a specific niche for
potential clients and as such, should
connect to one another. Hire a pro. While digital technology
has become more state-of-the-art,
making it easy for novices to produce
digital video, make the investment and
work with a professional videographer.
The pros will ensure your videos have a
news-quality appearance.
Practice, practice, practice.
While you want your videos to appear
comfortable and conversational, you
should practice your responses with
your partner, spouse or pet. The more
you practice, the more comfortable your
responses will sound.
Keep it short. One of the goals
of adding video to your website is to
Should you consider adding video encourage viewers to contact you.
to your website?
While you want to address the question,
If the concept of adding video to your you want to do so with an eye toward
website sounds compelling, but you are
piquing the viewer’s interest. Set a goal
not yet convinced to take the plunge,
of 30-second to one-minute (maximum)
consider the following:
responses to each question.
n Are you confident about
Be yourself. Let your personality
what differentiates you in the
show through. Smile, blink, and use
marketplace?
vocal inflection to get your points across.
n Do you know which services
Remember, you are talking to people
reflect your best and highest use
who could hire you or refer business to
as a lawyer?
you. Let that personality shine!
n Would you rather shoot a video
Dress the part. Dress as if you were
versus writing website content?
going to have a professional photograph
n Can you identify questions your
taken. Depending on the number of
current and prospective clients
videos you will be shooting, you may
frequently ask you—ones that you
want to include a wardrobe change so
have to answer repeatedly?
you are not wearing the same thing in
n Do you spend a lot of time
each video.
delivering “free consultations”
to clients you don’t end up
I took the video plunge; now what?
working with?
Don’t let your videos just sit on
n Are you engaging and
YouTube. Be proactive about how you
use them. Consider the following tips:
articulate?
If you answered yes to more than
Have your website developer embed
three of the questions above, you should a video player on your website. Time
consider adding videos to your website. and again, Google Analytics show us
4 Bench&Bar of Minnesota s March 2016
that the most viewed pages on a firm’s
website are attorney profile pages.
Consider adding a video to your profile.
Create a consultation room on your
website. This allows potential clients to
get a feel for the type of advice you give.
It shows them the breadth and depth of
your knowledge.
Create a video blog. Faster than
writing, with a more personal touch,
video blogs (vlogs) are a great alternative or addition to the classic blog.
Promote your videos on social
media. Videos get more views on social
media than written posts and images.
Promote your video on as many social
channels as possible.
Include new videos in your client
communications. When you communicate with your clients, make sure to
feature any new videos you’ve added to
your website.
Portfolio for other video
appearances. If a television station
needs an expert commentator, having
videos on your website can serve as a
portfolio for other video opportunities.
Videos are a great tool that clients
love to see. Having a video series
starring you—yes, you!—gives you
more credibility in your clients’ eyes and
allows them to connect with you before
they even meet you. s
TERRIE WHEELER, MBC, is
the founder and president
of Professional Services
Marketing, LLC (PSM).
Terrie has spent the last 25
years as an in-house marketing director, marketing
consultant, and marketing
coach to lawyers and law
firms. She currently serves as the volunteer video
coach for the MSBA’s Video Day program for lawyers. If you have a marketing question, contact
Terrie at [email protected], or via
telephone at (320) 358-1000.
This post originally appeared at
the MSBA Voices blog. To check
out Voices or other MSBA blogs,
visit www.mnbar.org/blogs
www.mnbar.org
A different kind of retirement plan.
Official publication of the
Minnesota State Bar Association
www.mnbar.org
Editor
Steve Perry
Design & Production
Jennifer Pickles
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MSBA Officers
President
Michael W. Unger
President-elect
Robin M. Wolpert
Treasurer
Sonia Miller-Van Oort
Secretary
Paul W. Godfrey
Executive Director
Tim Groshens
Publications Committee
Chairperson
Holly A. Fistler
Steven P. Aggergaard
Emily K. Cooper
June Hoidal
Carol K. Lee
Henry D. Long
Christopher D. Stall
Malcolm P.W. Whynott
Jonathan D. Wilson
© 2016 Minnesota State Bar Association
Bench & Bar of Minnesota (ISSN 0276-1505) is an official
publicaton of the Minnesota State Bar Association. Neither
the association nor the editors assume responsibility for
statements or expressions of opinions by contributors. n
Periodicals class postage paid at Minneapolis, Minnesota and
additional mailing offices. Published 11 months of the year.
May/June combined. Minnesota State Bar Association, 600
Nicollet Mall, #380, Minneapolis, MN 55402, (612) 333-1183,
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is included in dues. Nonmembers $35.00 per year. Some back
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is different from other providers. It was
established to meet the unique needs
of the legal community.
• As a not-for-profit corporation led by
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President’sPage
By Michael W. Unger
The courage to
change the things we can . . .
C
ourage, serenity and wisdom
are the three gifts commonly sought by many in
those recovery programs that
have embraced the serenity prayer as
a guidepost. Those qualities are useful for all of us in many facets of living.
They also provide helpful guidance as
we consider the findings and implications of the recent ABA/Hazelden study
that is addressed in much greater depth
elsewhere in this issue.
A couple of months ago I wrote a
column entitled “Minding the Balance”
in which I addressed work-life balance
issues and coping with stress. I did not
expect to have to revisit this issue, but
the recent study findings warrant some
further consideration. While my prior
writing addressed the importance of
each of us taking steps to manage our
own stress and to be more understanding
and helpful to colleagues who may be
suffering with substance or mental health
issues, this recent study raises some other
questions that are more systemic and suggest the need to do more than talk about
the steps we can take for ourselves.
Patrick Krill, one of the study’s authors, was recently quoted in MinnPost
about the implications of the high rate
of mental illness and substance abuse
found in our profession: “These findings
are worrisome for anyone who’s used an
attorney or will hire an attorney in the
future. The profession has an obligation
to take better care of its members…. You
can’t have someone who is a problem
drinker and is not in full control of his or
her mental abilities in charge of handling key life issues.”
Among the findings of this study
that have drawn some attention is that
the rates of problematic substance use
are highest among less experienced
attorneys. Those in the first 10 years
of practice report the highest rates of
problematic use (28.9%) while those
in the 11 to 20 year category are next
highest (20.6%).
While stereotypes of substance abuse
as being more common among older
persons may lead some to claim this is a
surprising finding, I think it is not so surprising. Aside from the obvious considerations—such as the “great recession”
and excessive law school debt, which
have hit the younger cohort much
harder than the rest of us—there are
other factors that explain this finding.
Newer attorneys tend to have less autonomy and control of their life choices,
and therefore have fewer options for
managing stress. They typically have less
compensation, while also facing greater
financial responsibilities in getting
established or growing a family. Since
the study was limited to active practitioners, this may have had the effect of
winnowing the pool of older attorneys to
the “survivors” who have not opted to
change careers.
As I reflect on my own experience
and career, I can see with 20/20 hindsight some changes that have affected
my professional satisfaction and happiness. Some have led to improved
satisfaction, and some have led to less
satisfaction. Fortunately, the balance has
tilted in the positive direction.
Early in my career I made a choice to
emphasize pursuit of my “passions” over
my pocketbook. That was a liberating
Reflecting on our profession
choice, and has probably been the single
What is it about our profession that
greatest cause for professional happiness
seems to make us more vulnerable to
and stress reduction. (It helped to have
mental health and substance use proba lawyer spouse so that it was possible for
lems? Are there things we do as a profes- both of us to make such choices at differsion that have the unintended conseent times along the way.) Over time I also
quence of making things worse? Whose gained more professional and economic
responsibility is it to address these ques- autonomy. This eventually culminated in
tions? Are we to restrict our response to the ultimate autonomy of the solo practice. That too has been a very good thing.
treating or encouraging assistance for
those particular individuals in distress?
These two choices fall into the category
of “changing the things I can.”
Or should we consider whether there
are ways of changing the characteristics
On the opposing side of things there
and values of the profession that seem to has been some loss of autonomy as a
civil litigator. My life has become much
contribute to such problems?
www.mnbar.org
more ruled by external forces, deadlines,
paperwork requirements, and a loss of
uninterrupted vacation time. Most of
these changes have been a consequence
of changes to the way civil litigation
is conducted and governed. Similarly,
the rules of competition for business
have changed, and I have seen the
competitive aspects of my practice area
become much more daunting. For the
most part, these changes have fallen into
the “serenity” category—things I can’t
change and need to accept.
The challenges to our professional
lives that make the incidence of mental
illness and substance abuse unacceptably
high do require a significant response.
I believe we can change many of the
factors that contribute to the stressors
of our profession. But lawyer assistance
programs and the bar association can’t
do it alone. This is a problem that requires all hands on deck.
Law firms, lawyers, law schools, the
Office of Lawyers’ Professional
Responsibility, CLE providers and the
courts all have a role to play as well.
The public depends upon lawyers to
make our system of justice work. We
need to try to improve the conditions
that make it more likely the public will
be well served by
our profession.
I think each of
the players I have
identified can
begin by simply
asking themselves, as they go
about their work:
How is what we
Michael W. Unger
are doing likely
is President of the
to impact the
Minnesota State
lives of lawyers?
Bar Association. He
Will it make
is a Certified Civil
their professional
Trial Specialist at
lives more
Unger Law Office
manageable?
in Minneapolis,
Paying more
representing
attention to this
negligence victims
concern is the
for serious injuries
first step toward
and wrongful death.
gaining the
He is also on the
wisdom to
adjunct faculty of
know when we
the University of
can make a
Minnesota Law School.
difference. s
March 2016 s Bench&Bar of Minnesota 7
MSBAinAction
MSBA Action
Changes coming to key MSBA
member benefits in 2016
S
everal popular MSBA
services will be getting a
Coming soon to MSBA
facelift in 2016.
n The MSBA will be
changing its internet legal
research provider from
Fastcase to Casemaker. While
Fastcase has been a valuable
practice resource for members,
Casemaker offers similar service with several added features and benefits. Watch
for more information coming soon. And like the current legal research service,
Casemaker will continue to be provided to members as a free MSBA benefit.
n The long-time Court Opinions by Email service will be getting an update this
summer. Members have long been able to receive daily emails with summaries of
Minnesota federal and state court decisions. This service will continue, although
it will be integrated with Casemaker utilizing its Digest service. In addition to the
current service, members will now be able to customize their delivery options,
including filtering court decisions and frequency of emails. Again, more information
coming soon.
n The MSBA will also be updating its discussion groups. While listservs like the
popular solo/small group will continue, the MSBA will be moving to a new platform
that will offer members greater control over their participation and additional ways
to engage with other members. Not ready to make the switch? These discussions
will continue to be available via email (in an updated format).
n The MSBA’s practicelaw resource library is also moving to a new home.
The new practicelaw will still offer over 1,200 forms, now with a more intuitive
hierarchy and fully searchable documents.
Want to learn more about any of these changes? Stop by the MSBA on
March 24 for the Spring Cleaning event to chat with staff and others about the
new and updated services. For additional details about the March 24 event,
visit http:bit.ly/1n00up2 (case-sensitive).
I
MSBA’s 2016 legislative priorities
t’s a short session this year at the Capitol: The Minnesota Legislature will
convene on March 8 and adjourn on May 23.
The MSBA Council has adopted the Legislative Committee’s recommended
lobbying priorities for this session:
1. An amendment to Minn. Stat. §290.01 subd. 7 to prevent the Department
of Revenue from the using the location of an individual’s attorneys, CPAs, or
financial advisors as a factor in determining residency, pursuant to a position
approved by the Assembly in 2014. (This is a continuing priority from last
session, contained in a tax bill that is expected to move forward in the 2016
session.)
2. Amendments to Minn. Stat. §524.2-301 to clarify inheritance rights between
spouses who have been unintentionally omitted from an estate plan, pursuant
to a position approved by the Assembly in 2012.
3. Amendments to Minn. Stat. §576, §577, and §559 to make technical
corrections clarifying receiverships and assignments for the benefit of
creditors, pursuant to a position approved by the Assembly in 2013.
4. Statutory changes to Minnesota’s parenting expense adjustment for child
support calculation in order to reduce or eliminate drastic changes in child
support awards based upon small differences in parenting time schedules,
pursuant to a position approved by the Assembly in 2015.
Watch for the weekly e-newsletter Capitol Connection to keep up to date on
these issues and other pending bills of interest to attorneys.
8 Bench&Bar of Minnesota s March 2016
MSBA Appellate
Section partners on
pro se clinic
M
innesota’s Appeals Self-Help
Clinic opened its doors to
customers for the first time in
January. The new advice-only clinic—
designed to help unrepresented parties
navigate the appellate process—is only
the second of its kind in the nation.
During this first pilot year, the clinic is
being offered on the third Thursday of
each month, from 2:30-4:30 p.m., in the
State Law Library (within the Judicial
Center), and staffed by members of the
MSBA Appellate Practice Section.
The idea for the clinic came from
our state law librarian, Liz Reppe.
She contacted the Appellate Practice
Section in 2015 to ask whether
members would be interested in helping
her put together a clinic to assist pro se
parties. Recognizing a great opportunity
to put its appellate knowledge to
use for the public good, the section
enthusiastically agreed.
For almost a year, a subcommittee of
the Appellate Practice Section’s Governing Council met with Reppe to plan
the details of the clinic and assemble
a resource binder for the lawyers who
volunteer there. (Thanks to Liz Kramer,
Erik Hansen, Katie Barrett-Wiik, Jenn
Young, Amy Lawler, and George Norris
for serving on that subcommittee.)
Despite receiving little publicity,
the Appeals Self-Help Clinic served 12
different parties during its first session
in January. The customers fill out intake
and evaluation forms that will be used
to assess the demand for the clinic, as
well as its efficacy, after its first year in
operation.
Correction: In last month’s MSBA in Action
item regarding a court order promulgating
changes to the rules of no-fault insurance
arbitration procedure, we indicated that the
court rejected MSBA recommendations in
making its order. In fact, while the court did
not address most of the concerns raised by the
MSBA, the final language of Rule 41 (regarding
rescheduling or cancellation fees) is largely
that recommended by the MSBA to ensure that
parties would not be penalized for settlement.
We apologize for the misstatement.
www.mnbar.org
MSBAinAction
Update:
Alternative Legal
Models Task Force
I
f you’re interested in staying up to
date on the work of the Alternative
Legal Models Task Force, just
bookmark the webpage found at
http:bit.ly/1QAyXlF (case-sensitive).
Meeting agendas, summaries, background and reading materials are posted
and will be updated as the committee
proceeds with its work. Many bar associations across the country have created
task forces or committees to address
access to justice and nontraditional legal
models. On a related note, at its midyear meeting in San Diego in February,
a divided ABA House of Delegates adopted Model Regulatory Objectives for
the Provision of Legal Services (Resolution 105). States can use the objectives
if they choose to develop or expand
nontraditional legal services. While
setting out broad principles, such as
protection of the public, transparency of
services, and delivery of affordable and
accessible legal services, the proposal
was criticized for encouraging delivery
of legal services by nonlawyers and companies not guided by principles of the
legal profession. To learn more about the
debate, read the ABA website’s account
at http:bit.ly/1LgktLR (case-sensitive).
Amicus briefs
filed on Minn. R.
Civ. P. 5.04
T
he MSBA filed two amicus briefs
in February on issues involving
Minn. R. Civ. P. 5.04 (see Gams v.
Houghton and Cole vs. Wutzke). Effective
July 1, 2014, Rule 5.04 was amended to
require that any case be filed with the
court within one year after its commencement against any party, unless the parties
stipulate to extend the filing period, or it
will be deemed dismissed. Dismissal under
the rule is with prejudice.
The amicus briefs filed by the MSBA
set forth our argument that a party
whose case is dismissed under Rule 5.04
because it was not filed within a year of
being commenced should have the right
to bring a motion under Minn. R. Civ. P.
60.02 for relief from the Order and Judgment dismissing the case with prejudice.
In addition, the amicus briefs posit that
any actions pertaining to modifying,
vacating or enforcing Rule 5.04 dismissals should be entered by a judge rather
than a district court administrator. The
MSBA thanks members of the Court
Rules and Administration Committee
for looking at these issues. Particular
thanks are due to Charles Webber, who
drafted the amicus briefs with assistance
from Daniel Cragg and Robin Wolpert.
Rules of civil
appellate procedure
T
he MSBA’s Court Rules and
Administration Committee
reviewed proposed amendments
to the Rules of Civil Appellate
Procedure and voted to write a letter to
the court supporting the changes. The
proposed changes can be found on the
courts website at http:bit.ly/1KOpBH7
(case-sensitive).
Join Us
MSBA Civil Litigation Section
Annual Meeting & CLE
Recipient of the
2016 Advocate Award
CHIEF JUDGE
PETER A. CAHILL
Fourth Judicial District
of Minnesota
THURSDAY APRIL 21, 2016
WINDOWS ON MINNESOTA, MINNEAPOLIS, 5:00 PM
AN EVENING WITH JEFFREY TOOBIN
The Effect of the 2016 Presidential Election
on the United States Supreme Court
1.0 Standard CLE credit to be applied for
www.mnbar.org/cle-events
www.mnbar.org
Jeffrey Toobin
Best-selling author and
legal analyst for CNN
and The New Yorker
March 2016 s Bench&Bar of Minnesota 9
What,Where
What,Where&When
When
Headshot Day
ADR
Certified Civil
s
Mediation Skills Training
Civil Litigation
Your First Civil Case in
s
Minnesota State Court
Minneapolis
Apr 15 • 30.0 Credits
MCLE
Minneapolis
Mar 28 • 3.0 Credits
MCLE
s Winning at Deposition
Minneapolis
Apr 13 • 6.0 Credits
MCLE
Agricultural Law s 2016 Agricultural &
Rural Law Institute
Mankato
Apr 6 • 6.25 Credits
MCLE
Banking
2016 Banking Law
s
Institute
Minneapolis
Apr 8 • 5.5 Credits
MCLE
About
the Sponsors
To register for courses listed
in What, Where & When
(or to obtain more information)
contact the organizations listed
below. Some courses require
advance registration. Here’s the
key to this month’s acronyms:
HCBA:
Hennepin County Bar Association
Phone: (612) 752-6600
www.hcba.org
MCLE: Minnesota CLE
Phone: (651) 227-8266
(800) 759-8840
www.minncle.org
MSBA: Minnesota State Bar Association
Phone: (612) 333-1183
(800) 882-6722
www.mnbar.org
RCBA: Ramsey County Bar Association
Phone: (651) 222-0846
www.ramseybar.org
CLASS NOTES:
s What, Where & When would
like to hear about your upcoming
CLE events. Mail or fax your
listing, free of charge, to:
Bench & Bar • 600 Nicollet Mall
#380 • Minneapolis, MN 55402.
Email: [email protected]
Family Law
2016 Family Law
s
Institute
Minneapolis
March 23 • 2.5 Credits
MSBA
Saint Paul
March 29 • 11.0 Credits
MCLE
s Social Security
Minneapolis
March 18 • 1.0 Credit
HCBA
Minneapolis
Apr 1 • 3.0 Credits
MCLE
Privacy Dilemmas
s
in Elder Care
Saint Paul
March 18 • 1.0 Credit
MSBA
International Business
s Substance Use,
Depression and Anxiety
within the Legal Profession
International Estate
s
Planning
Saint Paul
March 25 • 1.0 Credit
RCBA
Minneapolis
March 21 • 1.5 Credits
MSBA
s How to Manage
Client Expectations in
Employment Law Mediation
and Addiction Issues
in Older Adults
Saint Paul
Apr 14 • 1.0 Credit
RCBA
Ethics
Hot Topics in
s
Billing Ethics
Minneapolis
March 24 • 1.0 Credit
MSBA
Corporate Counsel:
s
One Head, Many Hats
Minneapolis
Apr 5 • 1.0 Credit
HCBA
10 Bench&Bar of Minnesota s March 2016
Labor & Employment s Mental Health
Saint Paul
March 23 • 1.0 Credit
RCBA
Health Law
Elimination of Bias
Update
your
Profile!
Minneapolis
Apr 12 • 1.0 Credit
MSBA
Nonprofit Law
2016 Nonprofit Law
s
Conference
Minneapolis
Apr 11 • 6.5 Credits
MCLE
Practice Managment
High Impact Low Cost
s
Strategies for Lawyers
Minneapolis
March 24 • 1.0 Credit
MSBA
s Finance for Lawyers
Minneapolis
Apr 6 • 5.5 Credits
MCLE
Professional
Development
Delivery of
s
Legal Services:
Compassion Fatigue
Minneapolis
March 31 • 1.5 Credits
HCBA
and the Gray Divorce
s Your First DWI Case
Get a free professional headshot to
add to your MSBA directory profile.
Learn more at:
www.mnbar.org/headshots
State v. Lindquist –
s
Minnesota’s Good-Faith
Exception
s The Anatomy of a
Successful Murder
Insanity Defense
MSBA Office, Minneapolis
Photo from Headshot Day Spring 2015
Emma Maddy, Otto Law
Criminal Law
Thursday, March 24
s MSBA Headshot Day
Public Utilities
State & Federal
s
Jurisdiction over Energy
& Telecommunications Minneapolis
March 30 • 3.25 Credits
MSBA
Real Property
Real Estate
s
on Appeal
Minneapolis
March 24 • 1.0 Credit
HCBA
Solo Small Firm
s Expungements:
A Year in Review
Saint Paul
March 24 • 1.5 Credits
RCBA
Current Tax Topics
s
Affecting the LGBT
Community
Minneapolis
March 17 • 1.0 Credit
MSBA
Tax Law
www.mnbar.org
MSBA ANNUAL
Convention - 2016
7
Valuable
Programs
Around
the State
and a
Great
Final
Event in
the Twin
Cities!
Coming this June to a location near you:
Detroit Lakes – June 20
Grand Rapids – June 13
Saint Cloud – June 16
Anoka – June 22
Minneapolis – June 24
Mankato – June 21
Lakeville – June 9
Rochester – June 15
Earn 6 CLE credits in one day and enjoy these timely topics at the suburban and Greater
Minnesota locations:
•
•
How to Protect Your Clients and Yourself from
Cyber Threats
New Developments at Minnesota’s Appellate
Courts
•
20 Technology Tips to Strengthen Your Practice
•
The State of Small Firm Practice in 2016: An
Interactive Discussion
•
The MSBA’s New Diversity Initiatives
•
Alternative Billing Models and Limited Scope
Services
•
Insurance Coverage for Your Clients and Yourself
Stay tuned for the Twin Cities Finale schedule, guest speakers and special benefits!
Save the Dates! Full Convention Schedule Coming Soon!
ProfessionalResponsibility
By Judith Rush and Pat Burns
Our ethical responsibility to help
ourselves and our colleagues
T
he recently released ABA/
Hazelden survey1 and the new
data on law students2 serve
as a stark reminder of the
challenges we face as a profession. Both
studies confirm what we have known all
along: Lawyers and law students suffer
from chemical and mental illness at
significantly higher rates than the rest of
the population.3 What these new studies
add is that new lawyers are at greater
risk than once believed, and that both
lawyers and law students are reluctant
to get the help they need.4 Ensuring that
lawyers who are ill get the help they
need is not just a good thing to do—it is
the ethical thing to do.5
As lawyers, we are officers of the legal
system and have a special responsibility for the quality of justice. As public
citizens, we should seek improvement
not only of the law, but the quality of
service rendered by the legal profession;
work to strengthen legal education; and
help the bar regulate itself in the public
interest. Each of us, guided by personal
conscience, should strive to improve the
legal profession. The future of each of
these pillars of our profession depends
on how we acknowledge and address
chemical and mental illness.
Addressing our chemical and mental
health as lawyers is also our professional
responsibility. Most obviously, an untreated illness has the potential to affect
competence. Competent representation
of clients requires knowledge, skill, thoroughness and the preparation necessary
for the representation.6 Consequently,
the Minnesota Rules of Professional
conduct (MRPC) prevent a lawyer from
representing a client when the lawyer’s
physical or mental condition materially
impairs his or her ability to represent the
client,7 and require a lawyer who knows
of a lawyer’s violation of the Rules that
raises a substantial question of their fitness as a lawyer to inform the appropriate professional authority.8
A lawyer’s obligations when he or she
is aware of a lawyer—within or outside
his or her firm—who suffers from a disability or impairment is the subject of two
separate American Bar Association opinions.9 Notably, the MRPC do not require
12 Bench&Bar of Minnesota s March 2016
disclosure by lawyers or judges who are
participating in a lawyer assistance program that provides assistance, support, or
counseling to lawyers who are chemically
dependent or have mental disorders.10
Minnesota’s bar admission and disciplinary systems encourage law students
and lawyers to get help:
Bar admission. Minnesota’s Board of
Law Examiners (MBLE) encourages
applicants to get the help they need and
indicates that it looks favorably upon
those who seek help.11 The questions
focus on a bar applicant’s conduct
and conditions that currently impair
or would have impaired an applicant’s
ability to meet the essential eligibility
requirements within the last two years.12
If an applicant has engaged in conduct
of concern13 or has been impaired as the
result of a chemical or mental illness,
the MBLE focuses on rehabilitation.14
An applicant whose rehabilitation is
recent yet who otherwise meets the
character and fitness requirements can
be conditionally admitted. Conditional
admission allows the applicant to be
admitted with a safety net to ensure
continued rehabilitation.15 A lawyer’s
conditional admission status is not
public. Consequently, law students have
every incentive to get the help they
need without fear of a negative consequence for seeking treatment.
Discipline. In addition to MRPC 8.3(c),
which removes the fear of being reported to disciplinary authorities by virtue
of seeking help, the disciplinary system
recognizes rehabilitation. As detailed
most recently by the former director of
the Office of Lawyers Professional Responsibility, disciplinary probation often
provides a road to rehabilitation, saving
the career of a lawyer with chemical
or mental illness who has engaged in
isolated or non-serious misconduct.16
For lawyers who have engaged in serious
misconduct and can prove a chemical or
mental condition caused their misconduct, the disciplinary sanction may be
mitigated.17 Minnesota’s disbarment
cases provide the greatest incentive to
effectively treat mental and chemical
health concerns to avoid serious misconduct in the first place.18
Preventing malpractice or risk of discipline. Supporting rehabilitation and
recovery from a chemical or mental illness is a good risk management practice.
Lawyers in recovery have been shown
to have lower malpractice and discipline
complaint rates than the general population of lawyers.19 But the OLPR’s annual
reports consistently show that 20 to 30
percent of new probations each year
have a psychological or chemical dependency component.20 Most transfers
of lawyers to disability inactive status
involve a very serious mental illness or
chemical dependency component.21
Lawyer assistance. The Minnesota
Supreme Court and the lawyers of Minnesota ensure that the members of our
profession have chemical and mental
health assistance through Minnesota’s
lawyer assistance program, Lawyers Concerned for Lawyers (LCL). Supported by
lawyer registration fees and charitable
donations, LCL provides free, confidential help to all lawyers, judges, and law
students on substance use, compulsive
behaviors, mental health, financial, career and other concerns that cause stress
or distress. It offers online resources,
peer support, professional counseling
and more.
Why would a lawyer or law student
avoid getting the professional help
they need?
Competition. The legal profession’s
culture tends to discourage open dialogue
about how we feel and what we believe.
Asking a lawyer how they are doing
is likely to elicit references to clients,
employment, and external indicators
of success rather than an assessment of
how things are actually going. This is
cultivated in law school, where smart,
high-achieving students find themselves
in an environment where they compete
for grades, resume-building activities, and
employment. It thrives in environments
where lawyers are rewarded for what they
produce and discouraged from exposing
weakness to adversaries or colleagues.
www.mnbar.org
ProfessionalResponsibility
Stigma and shame. Though both chemical and mental illness have a physiological source, the legal profession, like the
broader culture, stigmatizes those who
suffer from them. There is a mistaken
belief in the profession that an illness
with a chemical or mental component
is a weakness. Shame is frequently
associated with chemical abuse. At a
minimum, there is uncertainty as to how
they will be viewed by their colleagues.
Culture of overwork. As law students
and lawyers, we wear our dysfunction
as a badge. It is not uncommon to hear
law students plan Thursday night bar
review or drinks after an exam. The
legal profession focuses its events and
professional activities around alcohol,
and we openly acknowledge our use of
alcohol to address stress. We are proud
of our billable hours, working around the
clock, getting by on little or no sleep,
and how we stay connected to our work
while we are on vacation.
Fear. Lawyers and law students fear repercussions from colleagues, employers,
bar examiners, and disciplinary authorities. Law students fear if they seek help,
they will not be admitted to the bar.22
Lawyers fear they may be disciplined.
These fears are not totally irrational
given the importance of being admitted
and staying admitted to the bar. Yet the
fear often results from misinformation
or lack of information. Some lawyers are
afraid to ask for help from LCL because
they mistakenly believe they will be
reported to the OLPR. That simply does
not and will not happen.
Here’s what each of us can do:
Take a look at ourselves. Each of us
should consider how we are addressing stress in our environment. How do
you feel? Are you using healthy coping
mechanisms like meditation, exercise,
and human connection, or unhealthy
ones like alcohol?
Set good examples in our workplaces
and professional activities. If you have
a voice in the planning of a reception,
retreat, or other activity, look at the role
of alcohol in the event. Each time we
center our activities on alcohol, we send
the message to law students and our colleagues that alcohol is how we relax and
address our stress.
(Continued on page 47)
Judith Rush is the chair of the Minnesota
Lawyers Professional Responsibility Board.
Pat Burns is the acting director of the Office of
Lawyers Professional Responsibility.
www.mnbar.org
LAURIE & LAURIE P.A.
Employment Law • Business Cases • General Litigation • Mediation
www.laurielaurie.com
Selected
as a
Super
Lawyer
952-738-0191
Free initial client phone consultation
GERALD T. LAURIE is MSBA certified both as a Labor and
Employment Law Specialist and Civil Trial Law Specialist.
Minnesota State Bar Association
Certified
▲
Specialist
March 2016 s Bench&Bar of Minnesota 13
THE MINNESOTA JUSTICE FOUNDATION THANKS THE SPONSORS OF OUR
2015 ANNUAL AWARDS CELEBRATION
Gold Sponsors
Faegre Baker Daniels, LLP
Stinson Leonard Street
Robins Kaplan, LLP
Silver Sponsors
Briggs and Morgan, PA
Dorsey & Whitney, LLP
Fredrikson & Byron, PA
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Maslon, LLP
Shumaker & Sieffert, PA
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Bronze Sponsors
Best & Flanagan, LLP
Felhaber Larson
Hamline University School of Law
Monroe Moxness Berg, PLLP
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University of Minnesota Law School
University of St. Thomas School of Law
William Mitchell College of Law
Winthrop & Weinstine, PA
Pro Bono Supporters
Collins, Buckley, Sauntry & Haugh, PLLP
Greene Espel, PLLP
Littler Mendelson, PC
Snyder & Brandt, PA
The 2015 Annual Awards Celebration is co-sponsored by
the Minnesota Hispanic Bar Association
and the Minnesota Asian Pacific American Bar Association
Colleague
ColleagueCorner
Meet Greg Schieber
‘I knew I wanted to come back’
Greg Schieber grew up
in Caledonia, Minnesota,
and returned to the area
to practice law in nearby
Harmony—joining Richard
Nethercut, who for the prior 24
years had served as Harmony’s
only lawyer. Schieber
presently focuses on real
estate, family law, municipal
law, some civil litigation, and
many of the other little things
inherent in a small town
general practice.
What led you to choose to practice law in a small
town in southern Minnesota?
First, I grew up in Minnesota’s driftless region and knew
from a pretty young age I wanted to come back to this part
of the state that I love and to stay relatively close to family.
Second, I knew that practicing law in a small town, rural setting would allow me the opportunity to be a well-rounded and
better balanced person—both considering the broad scope of
legal work I could pursue in a general practice as well as my
extra-curricular activities. I specifically targeted Harmony
because although it was close to home, it was still far enough
away to plant new roots and start a professional career. It is
also a very appealing, full service, and friendly small-town
Minnesota community.
How did you develop a relationship with Richard
Nethercut and begin practicing in his firm?
Halfway through law school I sent Dick a letter highlighting
my desire to practice in a small town setting in southeastern
Minnesota and inquiring whether he might foresee an opportunity for me to do so in his office. At that time he wasn’t seriously
contemplating adding a second attorney to his solo practice.
Deep into my job search post-bar exam, I circled back around
to see if by chance his interest had changed. He invited me to
stop by to visit. It wasn’t long afterwards that I was dusting off
furniture in the unused office and settling in to a new career.
both instances the law plays a role. I aspire to build a part of
my practice around serving folks with specific needs in this
area as I become more skilled and established.
Do you have your own small farm?
I live on a small rural acreage between Harmony and
Lanesboro. Since it doesn’t yet generate any significant
agricultural income, I hesitate to call it a “farm” so as not
to insult all of the real farmers in the area. My fiancé and I
have a number of chickens, a couple of Scottish Highland
beef calves, and a miniature donkey, so far. We also have an
ever-expanding variety of fruit trees, strawberries, raspberries,
blueberries, and a thriving weed garden in which we grow
a few vegetables. I dream of building up a small beef herd
and generating a good annual apple crop for hard cider
production, among other goals.
What do you find particularly rewarding in your
practice?
I am always striving to make life easier for my clients. The
most rewarding part of my practice is when I can accomplish
that by efficiently resolving their legal issue, or at minimum,
explaining concepts in a way they can understand so they
can walk away better understanding their legal issue. I greatly
enjoy the opportunity to directly interact with clients on a
daily basis. We have a large volume of walk-in appointments,
especially since much of our practice involves serving the
local Amish community. The variety and unpredictability of
these opportunities serve as a nice balance to the sometimes
monotonous work of title opinions and real estate closings.
Do you and Mr. Nethercut have plans regarding the
future of the office?
We are presently in a transition phase and working to form
a partnership. Dick has an eye toward retirement in a couple of
years. This will give us some opportunity for a nice overlap as
he eventually transitions to fewer and fewer hours at the office.
Do you have any advice for newer attorneys who’d
like to practice in a small town?
I didn’t wait for a job opportunity to be advertised. I spent
a significant amount of time trying to discern what I wanted
and then I went out and tried to find or create that experience. In speaking with other rural attorneys, I believe there
is a hesitation to advertise for associates since they fear any
new hire will stick around for only a short period of time and
Tell us about your practice in agriculture and food law. then leave. Thus, an attorney who desires to serve in a rural
I attended Drake University Law School because of its agri- area is less likely to find job postings beckoning them. Instead,
cultural law program. It was a unique opportunity to overlap
they are best advised to step forward and advertise themselves
two of my interests. I knew it was likely that upon graduation to individuals doing what they would like to do in their own
I would serve in a rural area, making that knowledge particu- career. Ample opportunities exist for young attorneys in rural
larly useful. I am specifically interested in efforts to get more
areas, but the opportunities are even greater for young attorfarmers back on the land and enterprises that take raw local
neys desiring to commit their career to a rural area. Those are
agricultural products and add value before direct-marketing
the individuals that will turn heads of prospective employers
them, bringing greater wealth to our rural communities. In
with an eye toward retirement. s
www.mnbar.org
March 2016 s Bench&Bar of Minnesota 15
Campaign
Finance
Disclosure
in a
Citizens
United
World
By John R. McCullough
S
ince Citizens United v. F.E.C,1
there have been many discussions about campaign finance
law both at the federal and state
levels, and undoubtedly money
in politics will remain a perennial issue.
The Minnesota Legislature has recently
considered several proposals to address
spending in Minnesota campaigns.2 The
most significant proposal in recent years
has called for disclosure of electioneering
communications and expanded disclosure
for independent expenditures. During the
2013 legislative session, the Campaign Finance and Public Disclosure Board proposed a bill doing just that.3 According to
Gary Goldsmith, the executive director of
the board, the disclosure provisions “were
one of—if not the board’s highest—priority.”4 The disclosure provisions passed
the Senate but not the House in 2013,
and were ultimately left out of the final
16 Bench&Bar of Minnesota s March 2016
campaign finance bill that year.5 Again
in 2015, the Senate held a hearing on
the disclosure bill in the Subcommittee
on Elections, but no further action was
taken on the bill. This year the disclosure
bill has again been pre-filed by several
house members for introduction on the
first day of the 2016 session.6 In addition, members of the House DFL recently
announced they will propose an amendment to the state constitution requiring
more campaign disclosures.7
“Electioneering communications” is
a legal term that goes back to the 2002
federal McCain-Feingold law.8 Electioneering communications are commonly
known as “issue ads.” Federal law defines
electioneering communications as any
broadcast, cable, or satellite communication (i.e., television or radio ads) that
refers to a clearly identified candidate, is
made within 60 days before a general elec-
tion or 30 days before a primary election,
and is targeted to the relevant electorate.
McCain-Feingold prohibited incorporated
entities and labor unions from using their
treasury funds to pay for electioneering
communications aired on radio or shown
on television during the pre-election period. Minnesota law does not regulate
electioneering communications.
Both federal and Minnesota law provide for the disclosure of certain independent expenditures. The definition of
“independent expenditure” at the federal
level and in Minnesota is nearly identical. An independent expenditure means
an expenditure that expressly advocates
the election or defeat of a clearly identified candidate and is made without
any coordination with the candidate.9
“Expressly advocates” means that a
communication uses words or phrases
of express advocacy, such as “vote for,”
www.mnbar.org
Though U.S. Supreme
Court decisions such
as Citizens United and
Wisconsin Right to
Life have dramatically
refigured the campaign
money equation,
those decisions still
afford room for
further disclosure
requirements.
Minnesota is among
the states whose
legislatures have bills
pending on the subject.
Illustration by Jrcasas © istockphoto.com
“vote against,” “support,” or “defeat.” In
Minnesota, associations making certain
independent expenditures must register
with the Campaign Finance and Public
Disclosure Board and make disclosures to
the Board.
The federal prohibitions on certain
electioneering communications and independent expenditures have been subject to several high-profile U.S. Supreme
Court cases, most notably the Citizens
United case from 2010. The Court’s opinions have had consequences for how
states are able to regulate electioneering communications and independent
expenditures. So what may be regulated
with respect to electioneering communications and independent expenditures
after several important campaign finance
opinions from the U.S. Supreme Court?
And how does the Minnesota disclosure
proposal fit into those opinions?
www.mnbar.org
Electioneering Communications
Upheld as Constitutional
Upon enactment of the McCain-Feingold law, its constitutionality was challenged in McConnell v. FEC.10 In McConnell, the U.S. Supreme Court upheld the
constitutionality of the electioneering
communication restrictions and disclosure requirements. The Court also incorporated, as applied to McCain-Feingold,
the holding of Massachusetts Citizens for
Life (MCFL) v. FEC.11 In MCFL, the
Court held that a non-profit corporation
could make independent expenditures
as long as the non-profit corporation did
not accept funds from labor unions or
for-profit corporations. McConnell was a
victory for campaign finance reformers
insofar as the electioneering communications provisions were upheld. But the
Court also began to carve out exceptions
to McCain-Feingold’s prohibitions on
certain electioneering communications.
Issue Ads and Functional
Equivalency
The next U.S. Supreme Court case
that analyzed electioneering communications and independent expenditures
was Wisconsin Right to Life v. FEC.12 In
Wisconsin Right to Life (WRTL), the court
reviewed ads that WRTL planned to run
during the Wisconsin election season.
WRTL accepted corporate funds, so it
did not fall under the MCFL exception.
The Court held that the McCain-Feingold electioneering communications restrictions could not be applied to WRTL’s
ads because the ads were issue ads, not
express advocacy or the functional
equivalent of express advocacy. In order
to be the functional equivalent of express
advocacy, the Court held that an ad must
be “susceptible of no reasonable interpretation other than as an appeal to vote for
or against a specific candidate.”13 As long
as an ad can be reasonably interpreted
as something other than a campaign ad,
WRTL held, then the ad would fall outside the scope of the electioneering communications restrictions.
Citizens United: Corporate Funds
for Campaign Expenditures
The next major campaign finance
opinion issued by the U.S. Supreme
Court was Citizens United. In Citizens
United, the court analyzed the constitutionality of McCain-Feingold’s ban on
using corporate treasury funds to make
independent expenditures for electioneering communications. The Court also
reviewed the constitutionality of a law
existing prior to McCain-Feingold that
banned corporations from using corporate treasury funds for independent expenditures that expressly advocate the
election or defeat of a candidate. The
Court held that these prohibitions are
unconstitutional.14 In doing so, the Court
overruled the portion of McConnell that
upheld the restrictions on corporate independent expenditures.15 As a result of
Citizens United, any corporate entity can
use its corporate treasury funds for electioneering communications or for independent expenditures.
So then, what’s left of the federal provisions related to electioneering communications and independent expenditures?
Disclosure
All the cases cited thus far held some
portion of the prohibition on electioneering communications or independent
expenditures unconstitutional. But, in
none of the cases were McCain-Feingold’s disclosure requirements held unconstitutional. Citizens United (the appellant) argued that McCain-Feingold’s
disclosure requirements were unconstitutional as applied to issue ads. Justice
Kennedy rejected this argument and
stated that “disclosure is a less restrictive alternative to more comprehensive
regulations of speech.”16 Justice Kennedy
went on to say that “prompt disclosure of
expenditures can provide shareholders
and citizens with the information needed
to hold corporations and elected officials
accountable for their positions and supporters.”17
And that is where the Minnesota disclosure bill steps in: It is about the disclosure of certain electioneering communications and independent expenditures.
There are three main forms of communication that the U.S. Supreme Court
analyzed in the previously cited cases: (1)
express advocacy (independent expenditure) (2) the functional equivalent of
express advocacy (independent expenditure); and (3) electioneering communications (independent expenditure issue
ads). Minnesota law currently requires
disclosure for certain types of express
advocacy, but not electioneering communications or communications that
are the functional equivalent of express
advocacy.
So what does the Minnesota
disclosure bill do?
The Minnesota disclosure bill has
two main components.18 The first component is to modify the Minnesota
definition of expressly advocating to
include the functional equivalent of
express advocacy. Minnesota law currently defines expressly advocating as “a
communication that clearly identifies a
candidate and uses words or phrases of
express advocacy”19 such as “vote for,”
“vote against,” “support,” “defeat,” etc.
March 2016 s Bench&Bar of Minnesota 17
John R. McCullough is an attorney with the Office of the Revisor of
Statutes at the Minnesota Legislature. Prior to joining the Revisor’s Office,
John was an Equal Justice Works fellow with the Council on Crime and
Justice in Minneapolis. He is a 2005 graduate of the University of St. Thomas
School of Law. The views expressed in this article are entirely those of the
author and do not reflect the views of the Office of the Revisor of Statutes.
[email protected]
The bill adds the functional equivalent
standard as created by Chief Justice John
Roberts in WRTL. In WRTL, Roberts
held that “a court should find that an ad
is the functional equivalent of express advocacy only if the ad is susceptible of no
reasonable interpretation other than as
an appeal to vote for or against a specific
candidate.”20 By adding the functional
equivalency language to the definition of
expressly advocating, the law would bring
under the Minnesota campaign finance
disclosure scheme independent expenditures that urge the election or defeat of a
candidate but do not use words of express
advocacy.
The second component of the disclosure bill is to add disclosure requirements
for electioneering communications. The
bill adopts the federal definition of electioneering communications, except that
it also includes non-broadcast communications, such as printed materials, signs,
or billboards, and communications distributed through telephone, e-mail, or
text messaging. The definition provides
several exceptions, including exceptions
for news items, editorial comments,
nonpartisan voter guides, ads that refer
to a piece of legislation before the Legislature, and others. In the Senate Subcommittee on Elections in March 2015,
Gary Goldsmith explained the difference
between express advocacy and electioneering communications. “Electioneering
communications is different than express
advocacy.... It typically takes the form of
the publication that says to call a member and tell that member to do or to stop
doing something. That’s typically an
electioneering communication, if it falls
within the time-frame.”21 If disclosure requirements for electioneering communications were added, issue ads would then
fall under the scope of Minnesota campaign finance disclosure requirements.
The last time the Minnesota House
considered the disclosure bill (HF43) was
on January 12, 2015. On that day, former
Representative Ryan Winkler (DFL)
offered a motion to bring HF 43 up for
immediate consideration by the Minnesota House.22 The session had begun
only 6 days earlier and Winkler’s bill had
not yet been considered by committee.
18 Bench&Bar of Minnesota s March 2016
Representative Kurt Daudt (R-Crown)
had just been elected speaker of the
House and the members were set to begin
their work on the state’s biennial budget.
The urgency of taking up the disclosure
bill on that day, according to Winkler,
was that all campaign reports were due to
the Campaign Finance Board by January
31. Minnesota had just gone through an
election year in which nearly $34 million
in campaign expenditures were reported
to the Campaign Finance and Public Disclosure Board.23 The motion did not pass
and the bill was not subsequently considered by the House that session.
The last time the Minnesota Senate
considered the disclosure bill (SF 215)
was on March 12, 2015, in the Subcommittee on Elections. Senator Jim Carlson
(DFL-Eagan), the author of the bill in the
Senate, testified that in his interpretation the bill “does not prevent any kind of
communication.... It does not restrict any
free speech whatsoever.”24 In addition,
Christian Sande, a board member of the
Campaign Finance and Public Disclosure
Board, testified on behalf of the bill and
stated that as a result of recent campaign
finance law jurisprudence, campaign finance law “has changed its focus to disclosure.”25 Regarding the bill’s language,
Sande said that the Board believed the
approach “is a reasonable and a non-invasive expansion of Minnesota’s disclosure
laws to sweep in these undocumented
expenditures.”26 The bill was moved out
of the Subcommittee on Elections but did
not receive any further hearings.
It’s unclear whether the disclosure
bill will be heard during the 2016 legislative session. In 2013, when the DFL
controlled both houses of the Minnesota
Legislature and the governor’s office, the
disclosure bill did not make it into the
final campaign finance bill for that year.
Campaign finance law deals with some
very fundamental and sensitive issues relating to our democracy—elections and
free speech. No matter which party holds
the gavel, addressing these issues can be
a complicated task—balancing transparency in elections with first amendment
rights. What seems clear is that the disclosure bill will be a perennial issue for
years to come. s
Notes
1
558 U.S. 310 (2010).
2
See HF 0276 (2013), HF 2662
(2014), HF 2463 (2014).
3
See HF 863, section 34, as introduced
(2013). The Senate companion bill is
SF 661 (2013). See also SF 214 (2015),
HF 2398 (2016), and HF 2548 (2016).
4
Richert, Catherine. “Tougher disclosure rules dropped from campaign
finance bill.” Minnesota Public Radio,
May 20, 2013.
5
See Laws 2013, chapter 138 - https://
www.revisor.mn.gov/laws/?year=2013
&type=0&doctype=Chapter&id=138
6
See HF 2398 (2016) and HF 2548
(2016).
7
Collins, Jon. “House DFLers seek
disclosure of all election-related
spending.” Minnesota Public Radio,
February 4, 2016.
8
Bipartisan Campaign Reform Act of
2002 (BCRA) (52 U.S.C. 30104 (f)(3)).
9
See Minnesota Statutes, section
10A.01, subdivision 18.
10
540 U.S. 93 (2003).
11
479 US 238 (1986).
12
551 US 449 (2007).
13
551 US 449, 469-470 (2007).
14
558 US 310, 365 (2010).
15
Id.
16
558 US at 369.
17
558 US at 370.
18
See HF 43 (2015) or SF 214 (2015).
19
See Minnesota Statutes, section
10A.01, subdivision 16a for current
definition of expressly advocating.
20
551 U.S. 449, 469-470 (2007).
21
Minnesota Legislature, Senate.
Subcommittee on Elections. Hearing on SF 214 (2015). March 12,
2015. 89th Legislature. (Testimony of
Gary Goldsmith, Executive Director,
Campaign Finance Public Disclosure
Board) available at http://www.senate.
leg.state.mn.us/committees/committee_
media_list.php?ls=&cmte_id=3021.
22
Journal of the House, 89th Legislative
Session. 3rd Day (Monday 1/12/2015).
http://www.house.leg.state.mn.us/cco/
journals/2015-16/J0112003.htm
23
“Overview of Expenditures and
Sources of Funding for the 2014 Election.” Campaign Finance and Public
Disclosure Board, 4/9/2015.
24
Minnesota Legislature, Senate.
Subcommittee on Elections. Hearing
on SF 214 (2015). 3/12/2015. 89th
Legislature. (Testimony of Senator
Jim Carlson).
25
Minnesota Legislature, Senate.
Subcommittee on Elections. Hearing
on SF 214 (2015). 3/12/2015. 89th
Legislature. (Testimony of Christian
Sande, Board Member, Campaign
Finance Public Disclosure Board).
26
Id.
www.mnbar.org
T
he expansion of federally funded, stateadministered Medicaid
programs is placing a
significant burden on
state programs to provide affordable medical care and
treatment for countless individuals. Like other essential
government health programs,
Medicaid’s funding is growing
given the needs of individuals
amid rising health care costs.
Court decisions have hindered the ability of these
programs to recover fully for
monies paid on behalf of beneficiaries. But the looming effective date of a federal law known
as the Medicaid Secondary Payer
Act has put changes on the horizon
that will affect how you settle personal injury and workers’ compensation
cases. Failure to prepare now will expose
your law practice and clients to adverse
government action.
Show Them
The Money
Medicaid Secondary
Payer Recovery in
Injury Cases
The expansion of Medicaid benefits under the Affordable Care Act has spurred federal action to ensure that
states can more aggressively recover costs incurred by
the government in injury cases. In Minnesota, where
case law has limited Medicaid cost recovery in the past,
attorneys handling Medicaid-related injury cases will
need to master a new statutory framework.
By Aaron Frederickson
20 Bench&Bar of Minnesota s March 2016
Understanding Medicaid
The Medicaid program has its origins
under the Social Security Amendments
of 1965, through Title XIX to the Social
Security Act. It is now codified at 42
U.S.C. §1396 et seq., and is characterized
by a federal/state relationship.1 In this
unique arrangement to deliver healthcare to the disabled and those living in
poverty, the federal government provides
states with a source of program funding and mandatory directives.2 While
the Medicaid program is voluntary and
states are allowed to meet the needs of
their population base, requirements and
benchmarks established by the Centers
for Medicare and Medicaid Services
(CMS) are compulsory.3
Medicaid should never be mistaken
for Medicare. Medicaid differs from
Medicare not only in its funding mechanism, but also in other ways:
n It is a “means tested” benefit (eligibility based on income and assets);
n This program is funded by state
and federal governments; and
n State governments are the primary administrator of Medicaid
programs, while receiving direction and approval from the federal
government.
A barrier to understanding Medicaid and its rights of recovery starts with
the labyrinth of statutes and regulations
governing this changing issue. This has
resulted in it being referred to as “unintelligible to the uninitiated,” with a need
for a fresh start.4
www.mnbar.org
Medicaid Eligibility and Operations
Under its original framework, Medicaid was designed to serve as a medical
assistance program for families with dependent children, older Americans, and
those who were disabled or blind.5 Passage of the Patient Protection and Affordable Care Act (ACA)6 has expanded
the scope of those covered under Medicaid. Under current guidelines, nearly anyone who has a household income under
133 percent of the federal poverty level
(roughly $32,252.50 for a family of four
in 2015) and is under the age of 65 qualifies for this benefit. This also includes
adults without dependent children.7
Attorneys practicing in the area of
workers’ compensation and personal injury claims have taken notice of CMS’s
warning regarding compliance with federal health and welfare law since the mid1990s. This is mainly the result of CMS’s
issuance of the Patel Memorandum, and a
growing area of the law known as Medicare Secondary Payer compliance.8 While
the interests of the federal and state government’s role in Medicaid were not specifically addressed in the memorandum,
it was speculated by some that other government benefits were ripe for recovery
efforts in the near future. Given this void
and the lack of federal direction to state
governments, parties to injury cases have
often neglected to recognize Medicaid’s
rights. The lack of these recovery efforts
has placed onerous pressure on the individual Medicaid programs.
Medicaid Rights of Recovery:
The Ahlborn Decision
In 1996, Heidi Ahlborn was in a severe motor vehicle accident that forced
her to secure medical insurance through
Arkansas’ Medicaid program.9 During
the course of her recovery, the Arkansas
state Medicaid program paid $215,645
related to her medical care and treatment for personal injuries.
Ms. Ahlborn and her attorneys cooperated with the Arkansas Department of
Human Services during settlement negotiations. The parties invited the department to participate in settlement discussions regarding a claim that was valued
at just over $3,000,000. Attorneys for
Ahlborn ultimately settled her personal
injury claim for $550,000, or roughly
one-sixth the total value. This amount
represented a compromise of the total
value of her claim for pain and suffering,
all wage losses and past/future medical
care. The final settlement agreement did
not itemize the percentages of these potential claims.
Following settlement of her case, Ahlborn offered to settle her claims with
the Department for $35,581.47, which
www.mnbar.org
was one-sixth of the total lien amount.
The department rejected this offer. The
department then brought a declaratory
action in federal court seeking reimbursement for the full lien amount based on
Arkansas Code Annotated Sections 20-77301 through 20-77-309, which allowed
recovery from “the cost of benefits” from
third parties. The department also argued
Ahlborn could not limit the state’s recovery based on legal theories of contributory or comparative fault of the Medicaid
beneficiary, nor could their claim be minimized based on any reductions accepted
in an injury-related settlement.10
The federal district court judge hearing the matter sided with the department by awarding the full lien amount.
Ahlborn appealed successfully; the court
rejected the department’s position. The
United States Supreme Court agreed to
review the matter, which involved the
construction of the Medicaid statute and
its implementation. The Court focused
It is paramount for
attorneys practicing
workers’ compensation
and personal injury law in
Minnesota to understand
how to protect their
clients and consider the
interests of Medicaid.
its attention on both the federal thirdparty liability provisions and anti-lien
provision of the federal Medicaid laws.11
In addressing issues related to federal
third-party liability provisions, the Court
reviewed in detail the origins of the Medicaid program and its operation at the
state level. Central to this discussion was
the understanding that beneficiaries are
required to “‘assign the State any rights…
to payment for medical care from any third
party,’ 42 U.S.C. §1396k(a)(1)(A) (emphasis added), not rights to payment for,
for example, lost wages.”12 Under this
framework, the Court determined the
Department was indeed limited in what
it could recover.13
The Court then turned its attention
to various anti-lien provisions contained
within federal law and their interactions
with state law pertaining to Medicaid.
While there was an agreement that federal law created a “floor upon which
States were free to build…[,] the federal
statute places express limits on the State’s
powers to pursue recovery of funds it paid
on the Recipient’s behalf.”14 Due to these
limitations, the department was not able
to recover fully from Ahlborn.
Post- Ahlborn and Unanswered
Questions on Recovery
The effect of the Ahlborn decision was
a significant setback for state Medicaid
programs and their efforts to recover
monies in injury-related cases. Notwithstanding this setback, little changed
nationwide as other state programs continued to focus on the solvency of their
programs through aggressive recovery
efforts. This was also made possible by a
key question that was not resolved by the
Ahlborn Court: how state programs could
determine the portion of a settlement
that represented “medical care.”
In North Carolina, the state legislature answered this question by allowing their Medicaid program to receive
automatic reimbursement for medical
expenses of up to one-third of the total
recovery.15 This scheme was challenged
in a medical malpractice case, Wos v. ex.
rel. E.M.A., involving damages exceeding
$42 million and a child born with severe
cognitive disabilities.16
In its review, the Wos Court was again
troubled by a statutory scheme that appeared to give Medicaid programs unfettered access to settlement proceeds.
Speaking for a 6-3 majority, Justice
Kennedy noted, “Under the Supremacy
Clause, ‘[w]here state and federal law
‘directly conflict,’ state law must give
way.’ The Medicaid anti-lien provision
prohibits a State from making a claim to
any part of a Medicaid beneficiary’s tort
recovery not ‘designated as payments for
medical care.’ (Citations omitted) North
Carolina’s statute, therefore, is preempted if, and insofar as, it would operate that way.”17 The majority went on to
assert that these programs should avoid
“irrebuttable presumptions” when considering recovery for medical expenses
in injury cases and provide due process
protections for beneficiaries based on equitable consideration of the facts of each
individual case.18
The holdings in Ahlborn and Wos significantly limited the options state Medicaid had to recover medical expenses
paid in injury cases. This forced states
to be creative in a number of ways when
addressing the ongoing solvency of their
Medicaid program:
n Medicaid agencies have sought
a greater role in cases where medical damages are an issue. This includes all phases of litigation and
settlement;
March 2016 s Bench&Bar of Minnesota 21
n State legislatures have responded
to the burdens faced by Medicaid
programs by passing mandatory
joinder laws in impacted cases; and
n States are increasingly willing
to accept a negotiated “discount”
instead of pursing litigation where
issues of causation are highly
questionable.
The Federal Government Responds:
Medicaid Secondary Payer
Central to the Ahlborn and Wos
decisions was the construction of
federal laws regarding the rights and
responsibilities of parties in injury
cases, which served as a barrier to state
Medicaid programs in their recovery
efforts. Change was needed to address
this problem. This change came in
the form of amendments to the Social
Security Act regarding Medicaid in
Section 202 of the Bipartisan Budget Act
of 2013,19 or the Medicaid Secondary
Payer Act.
Under this new statutory framework,
the law that decided Ahlborn has undergone a radical transformation. Effective
October 1, 2016, state Medicaid agencies are explicitly permitted to recover
funds expended on a beneficiary’s behalf
from the entire settlement proceeds by
removing language that limited recovery
to only “health care items or services.”
Now recovery can be against “any payments.”20 This expansive language will
require attorneys handling injury cases
to adopt new best practices to consider
the interests of Medicaid and to protect
themselves and their client’s interests.
The efforts to strengthen Medicaid
recovery efforts are not limited to the
courtroom. On June 1, 2015, CMS
proposed rules to assist state Medicaid
programs in their recovery efforts.21
These changes were related to existing
state Medicaid requirements related to
the third-party cases and data match
programs for motor vehicle accidents and
workers’ compensation claims. Under
the proposed streamlined process, states
would be given greater flexibility to use
technological advancements in their
recovery programs.
The Future of Medicaid
Secondary Payer Is Here!
Although provisions of the Medicaid
Secondary Payer Act do not take full
effect until October 2016, its impact is
already being felt in how parties settle
injury cases. One early example is the
state of Rhode Island and the Medical
Assistance Intercept System (MAIS).22
Under this innovative program, the
state has initiated the following steps to
maximize recovery efforts:
22 Bench&Bar of Minnesota s March 2016
n Use an electronic data match
system to identify Medicaid recipients with pending injury-related
claims;
n Allow insurance companies and
attorneys the option of performing this data match via the Insurance Services Office (ISO) Claim
Search or using the MAIS interactive lookup tool;
n Intercept payments of $500 or
more for reimbursement involving
Medicaid beneficiaries in workers’
compensation and personal injury
cases; and
n Require all insurance companies
doing business in Rhode Island to
participate in the MAIS Program.23
away their right to recover for the nonmedical portions of their claim. To this
extent, beneficiary plaintiffs are able to
resolve their tort actions, less any issues
related to medical care, without interference by the state.31
The change in federal recovery statutes effective October 1, 2016, will
have a radical impact on the future interpretation of Minnesota’s Medicaid
recovery statutes. The change in rights
of Medicaid programs to recover “any
payment(s)” made on a beneficiary’s behalf will subject one’s control over their
bundles of sticks to more governmental
scrutiny. Failure to understand and adapt
to this change will only result in adverse
actions against attorneys, and possible
adverse actions under state and federal
The National Conference of Insur- False Claims Acts. The holding in Martin
ance Legislators (NCOIL)24 is advocating will also be void, as will the judicial deterthe adoption of their model legislation to minations in Ahlborn and Wos.
assist in recovery efforts. The Model Act
Regarding Medicaid Interception of In- What Minnesota Attorneys
surance Payments is a result of this work. Must Know
The Minnesota Department of Human
If adopted, it would apply to all workers’
compensation and personal injury claims Services (DHS) is the agency responsible
for medical payments coverage and third for implementation and enforcement of
party payments for bodily injury from the state Medicaid program. It is parainsurers and self-funded primary plans. mount for attorneys practicing workers’
States such as Kentucky and Mississippi25 compensation and personal injury law in
have embraced fully this message and Minnesota to understand how to protect
have made recent steps to notify inter- their clients and consider the interests of
ested parties of their proactive recovery Medicaid. Existing recovery policies alefforts.
low the department to monitor workers’
compensation claims under a data match
Medicaid Recovery in Minnesota: program similar to Rhode Island’s. This
Sorting the Bundles of Sticks
process is not in place when it comes to
The Minnesota Supreme Court has other personal injury claims, including
also taken the opportunity to address the incidents involving beneficiaries in mocomplex issue of Medicaid recovery.26 tor vehicle accidents. Future legislative
In Martin ex rel. Hoff v. City of Roches- efforts may assist DHS to communicate
ter, the court scrutinized the statutory with the Department of Public Safety to
framework of recovery in Medicaid cases streamline compliance efforts while reunder lien and subrogation.27 While the specting the privacy rights of individuals.
statutes in question did survive judicial
Under the Minnesota Workers’ Comscrutiny, clarification was given regarding pensation Act, attorneys representing the
the state’s ability to recover.
employee and employers/insurers have
Central to the Court’s analysis were an affirmative obligation to make inquiry
federal anti-lien provisions and the abil- into potential intervention interests.32
ity of the state to recovery money paid on Supporting case law requires the resolubehalf of an injured Medicaid beneficiary. tion of these claims or the reservation of
In doing so, the Martin Court reached their rights via disposition at a post-setconclusions similar to those found in Ahl- tlement hearing.33 These rights have also
born and Wos—the Medicaid program is been found to be in conformance with
limited to recovery from the recipient’s state and federal law concerning Medicmedical expenses only.28
aid rights of recovery.
In order to illustrate its holding, the
Similar obligations of attorneys and
Court used the legal concept of a “bundle pro se litigants arguably exist in other
of sticks.”29 A Medicaid beneficiary in an personal injury claims.34 In order to be
injury claim holds this bundle, with each vigilant on compliance and recovery
stick representing a separate potential matters, DHS systems will generate a
right of recovery. Based on federal and Medical Service Questionnaire (MSQ) if
state law, the state is able to retain sole a beneficiary receives care within speciownership of the right to recover medical fied treatment parameters. A MSQ seeks
expenses against any third party.30 On the information about the origins of the injuother hand, the plaintiff does not give ry and to identify responsible parties and
www.mnbar.org
potential claims. It is then the responsibility of the beneficiary to respond to this
request in a prompt manner.
The greatest impact will likely be
seen in non-workers’ compensation cases
involving a personal injury. In these instances, the litigants are not subject to
the strict statutory confines and settlement procedures. This may result in the
need for further scrutiny by DHS and
a push for legislative efforts as noted in
NCOIL model laws.
n Understand the applicable state
law (and case law) in your jurisdiction. Medicaid recovery is a right of
subrogation and not a “lien” in the
traditional sense of the word. Failure to resolve such claims can adversely affect you and your client(s).
n Proactively communicate the
importance of Medicaid recovery
to your client(s) and other stakeholders in the claim. This also includes cooperating with opposing
counsel on recovery matters and
keeping the appropriate state agencies advised as litigation progresses.
n Identify issues concerning Medicaid eligibility or beneficiaries and
place the appropriate state agency
on notice. Self-reporting is encouraged.
n In personal injury cases, attorneys
representing injured parties should
specify the percentages of claims attributable to medical expenses, including those portions where Medicaid would have a claim, in their
settlement agreements.
Protecting Your Clients through
Best Practices
The competing interests of state and
federal statutes have complicated the
legal practice of attorneys in workers’
compensation and personal injury cases.
Now is the time to act before Medicaid
recovery efforts go into overdrive. This
includes educating all stakeholders about
changes coming to the Medicaid recovery process. Failure to implement updated practices could jeopardize your client’s
claim and subject attorneys to malpractice actions. Here is what you must do:
Notes
1
42 C.F.R. §430.0.
2
Id., and 42 U.S.C. § 1396b(a); See
Norwest Bank N.D., v. Doth, 159
F.3d 328 (8th Cir. 1998).
3
42 C.F.R. §430.10.
4
Friedman v. Berger, 547 F.2d 724,
727 (2nd Cir. 1976).
5
42 U.S.C. §1396–1.
6
Public Law No. 111-148.
7
42 U.S.C. §1396a(a)(10) et seq.
8
Parashar B. Patel, Centers for Medicare and Medicaid Services, policy
memorandum, 7/23/2001.
9
Arkansas Department of Human
Services v. Ahlborn, 126 S. Ct. 1752
(2006).
10
Ark. Code Ann. §20-77-301(d)(1)
(2001).
11
126 S. Ct. at 1760.
12
Id. at 1761.
13
Id. at 1765.
14
Id. at 1762. The Court noted
these limitations are found in
several places, including 42 U.S.C.
§§1396a(a)(18) and 1396p.
15
N. C. Gen. Stat. Ann. §§108A–57,
and 108A–59.
16
Wos v. ex. rel. E.M.A., 133 S. Ct.
1391 (2013).
17
Id. at 1398.
18
See Id. at 1400 – 1401.
19
Public Law No. 113–67. These
provisions were to take effect on
10/1/2014, but were delayed two
years per Section 211, Public Law
www.mnbar.org
No. 113-93.
Id. at Section 202, which will be
codified at 42 U.S. Code §1396k (a)
(1)(A).
21
CMS-2390-P; Medicaid and
Children’s Health Insurance Program (CHIP) Programs; Medicaid
Managed Care, CHIP Delivered in
Managed Care, Medicaid and CHIP
Comprehensive Quality Strategies,
and Revisions Related to Third
Party Liability.
22
2012 R.I. ALS 241, 2012 R.I. Pub.
Laws 241.
23
Additional information about the
Rhode Island Medical Assistance
Intercept System can be found at:
https://ri-mais.com/.
24
According to their website,
“[t]he purpose of NCOIL is to help
legislators make informed decisions on insurance issues that affect
their constituents and to declare
opposition to federal encroachment
of state authority to oversee the
business of insurance, as authorized
under the McCarran-Ferguson Act
of 1945.” http://www.ncoil.org/.
25
In Miss. Div. of Medicaid v. Pittman,
171 So. 3d 583, (Miss. Ct. App.
2015), Cert. denied, 2015 Miss.
LEXIS 395 (Miss. 2015), the Court
rejected the “Made Whole Doctrine” when considering the state
Medicaid programs rights. A formal
letter from the Mississippi Division
20
n Promptly pay and resolve claims
as part of the settlement process,
including claims by state Medicaid
agencies.
Conclusion
The Medicaid program plays an increasingly important role in health coverage for Americans. As its scope grows,
so will its impact on injury-related claims.
This growth will force state Medicaid
programs to be aggressive in asserting
their recovery rights in claims, which are
bolstered by changes in federal law that
expand their rights. s
Aaron P. Frederickson
is licensed to practice
law in Minnesota and
Wisconsin. He has
practice experience in
workers’ compensation,
civil litigation, and
Medicare/Medicaidcompliance matters. He
can be reached at (651) 485-7036.
[email protected]
of Medicaid was sent to the State
Bar on 7/17/2015, as further caution on recovery matters.
26
Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1 (Minn. 2002).
27
Id. at 11. The relevant statutes include Minn. Stat. §256B.042, (lien
rights) and Minn. Stat. §256B.37
(subrogation).
28
Id. at 24.
29
Id. at 26. These “sticks” include
pain and suffering, emotional distress, disability, disfigurement, etc.
30
Id.
31
Id.
32
Minn. Stat. §176.361; and Minn.
R 1415.1100 et seq.
33
Parker/Lindberg v. Friendship Village,
395 N.W.2d 713 (Minn. 1986).
34
Minn. Stat. §256B.042, subd. 2(c).
March 2016 s Bench&Bar of Minnesota 23
Lawyers, Drinking, Depression
A Problem That Isn’t Going Away
Interview:
Minnesota Lawyers Concerned
for Lawyers Executive
Director Joan Bibelhausen
Bench & Bar: You’ve worked in Minnesota’s lawyer assistance
program for some time. Did any of the findings of the ABA/Hazelden
study come as a surprise to you?
Joan Bibelhausen: In looking at the study, the numbers that
are confirmed are surprising to many people. But looking at
the levels of distress we see at LCL and the types of issues that
people call with when they’re looking for help, none of it was
terribly surprising. LCL has been in existence for 40 years as
of August; LCL has been engaged with substance issues from
the beginning. In 2001 we started helping with mental health
issues as well.
B&B: In the wake of the study, a lot of observers have been
struck by the findings about problem drinking among younger
lawyers, which directly contradict a longstanding assumption that
the main problems were with middle-aged or older attorneys. Does
your experience at LCL bear out a surge in problem drinking among
younger lawyers in particular?
Bibelhausen: The numbers regarding younger lawyers were
unexpected. I think there’s been an increase in drinking culture at the law schools over the last dozen years-plus. There
has also been an increase in more recent years in efforts to raise
alcohol awareness. I think the economy has contributed to the
distress that is out there. There are fewer jobs, and those jobs
may not feel secure. [Alcohol] is one of the ways that many reduce stress, and it’s a social lubricant for lawyers. If you look at
new or young lawyer sections, the events that get attended are
the ones that include alcohol. It’s the same with the ABA. The
events that get attended are going to include alcohol.
B&B: The study also suggested that problem drinking happens
at higher rates in private practice settings than in government/public
or corporate/in-house roles. Does that comport with your program’s
experience?
Bibelhausen: If you look at the actual study numbers, the
percentages are somewhat higher in private practice. But if
you look at the numbers overall, there is a considerable degree
of stress in all settings. While it’s somewhat higher [in private
practice], that doesn’t mean that we now think all the attention must be paid to private practice. At LCL we see distress
across the board, and we need to remember that any area has
the potential to give rise to the levels of distress that might
result in the sorts of statistics we’re seeing in the study.
B&B: What advice would you have for an attorney who might be
concerned about his or her own drinking?
Bibelhausen: Ask for help. There are organizations like LCL
that can help you assess your own use and look at what triggers the
use. Has anybody talked to you about it? Has anybody ever said,
“Don’t you think you’ve had enough?” or “I’m worried about you”?
24 Bench&Bar of Minnesota s March 2016
A TOUGH JOB
DEPRESSION
ALCOHOL ABUSE
LAWYERS
GENERAL POPULATION 7%*
LAWYERS
GENERAL POPULATION 6%*
28%
Alcohol abuse and depression
rates among lawyers versus
the general population
A landmark study by the American Bar Association and the Hazelden
Betty Ford Foundation depicts a profession troubled by problem drinking,
depression, anxiety—and abiding fears about seeking help. In a pair of
interviews, Joan Bibelhausen of LCL and study co-author Linda Albert
discuss the findings and what the profession can do to address them.
21%
A PROBLEM ACROSS
PRACTICE SETTINGS
Problematic drinking rates by lawyer employment setting
24%
BAR/LAWYER ASSISTANCE PROGRAMS
23%
PRIVATE PRACTICE FIRM
19%
PRIVATE PRACTICE SOLO
19%
GOV’T/PUBLIC/NONPROFIT
PRIVATE PRACTICE FIRM
JUNIOR ASSOCIATE
SENIOR ASSOCIATE
JUNIOR PARTNER
MANAGING PARTNER
SENIOR PARTNER
THE GENDER GAP
18% CORPORATE/IN-HOUSE
17%
COLLEGE/LAW SCHOOL
16%
JUDICIARY
YOUNGER
LAWYERS
HIT
HARDEST
Problematic drinking
rates by lawyer age
Male attorneys more susceptible to problem drinking
25%
16%
MALES
FEMALES
32%
25%
19%
16%
14%
12%
AGE
<30
31%
26%
24%
21%
19%
31-40
41-50
51-60
61-70
71+
Sources: “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” by Patrick R. Krill, JD, LLM; Ryan Johnson, MA;
Linda Albert, MSSW (Journal of Addiction Medicine: Feb. 2016 pp. 46–52), except *: “Behavioral Health Trends in the United States: Results from the 2014
National Survey on Drug Use and Health,” U.S. Substance Abuse and Mental Health Services Administration, Sept. 2015
Interview:
ABA/Hazelden study
co-author Linda Albert
Bench & Bar: It had been a long time since there had been any
systematic study of lawyers and alcohol and mental health. Twopart question: Why do you think it had been so long, and what did
you learn?
Linda Albert: I don’t know that it’s ever been done before on
a national level—in fact, I don’t believe it has—that we have
taken a look at the legal community and the current prevalence
of both substance use issues and mental health concerns. I think
that’s what makes it a landmark study. I believe the amount
of years that can go by is due to the difficulty of getting the
data and having the resources to put together a scientific study.
So that’s where the collaboration was so critical between the
American Bar Association Commission on Lawyer Assistance
Programs and the Hazelden Betty Ford Foundation. We needed
both of these large leaders from the fields of the legal profession
and the treatment of addiction and co-occurring disorders to
join together to have enough resources to do a national study.
So with the collaboration, we had the ability to do this. For
the first time now, we have the current rates. I think there are
several things that we have learned. I think we’ve learned that
attorneys in the United States have significantly higher rates
of problematic drinking, along with depression and anxiety,
than the general population. I think another piece of information that was new is that… we found, contrary to previous
research, that it’s our younger lawyers who have higher levels
of problematic drinking and mental health concerns. We also
were able to [measure] how the level of problematic drinking
compares to levels of depression, anxiety and stress. What we
saw is that they do parallel each other—the higher the level of
problematic drinking, the higher the levels of depression, anxiety, and stress our lawyers were experiencing.
Another key finding is that there is very limited help-seeking behavior among this population. For me, it almost seems
like a fear-based population when it comes to trying to seek
help. I look at it as errors in the thinking about the confidentiality [of assistance programs]. I believe that services are confidential and that people can get help without others finding out
or having it impact their licenses. Yet overwhelmingly, the data
demonstrated that there was a fear of telling anybody—even
going to a self-help group. I think that plays out significantly in
addressing the problem and decreasing the levels of problematic use as well as depression or anxiety.
B&B: What, if anything, surprised you in the results?
Albert: It was disheartening to see the high level of depression. Previous studies had been in the 15-18 percent range, and
our study had 28 percent of subjects indicating some form of
depression. Along with depression can come other problems—
problems handling cases, being able to concentrate, being able
to get good sleep. It can affect physical health and wellness.
March 2016 s Bench&Bar of Minnesota 25
Bibelhausen interview continued:
And how has that felt to you? Are you
annoyed by that? If you’re finding yourself reacting defensively to someone
else’s concern, then it may be time to
take a look. Lawyers or their family members can call LCL, and we can offer an
evaluation. Sometimes there are underlying situations that can trigger unhealthy
drinking. It may be that they’re dealing
with a high degree of stress and that’s one
of the ways they handle it. It may be that
attending to those causes will decrease
their use. Some people, on the other
hand, are at a point where they really
should stop drinking. A thorough evaluator will assess your use and other factors
and make recommendations.
When we look at these statistics—20.6 percent met the criteria for
problem drinking based on subjective
questions, and an even higher percentage
met the criteria based on questions about
frequency and amount of use—not all of
these people are addicts, or attending to
client matters under the influence. Rather it’s use that often occurs after work.
There are certainly people who do work
under the influence, but in many cases
this is what we’re doing [after hours] to
relieve our stress. And that can definitely
impact our effectiveness the next day.
“This isn’t a lawyer
assistance program issue.
It’s a profession issue.”
I am actually more concerned about
the figures regarding depression. The rate
of problem drinking receives the most
coverage. Drinking may or may not be
outside of work but depression is 24/7.
And 28 percent of respondents reported
symptoms of depression. That concerns
me much more.
B&B: Obviously there is sometimes a
synergy between drinking and depression,
but it sounds like you encounter a lot of lawyers who grapple with depression irrespective
of chemical issues.
Bibelhausen: That’s right. Depression and anxiety. More men reported
symptoms of depression and more women symptoms of anxiety. They’re both
mental health issues that can affect one’s
ability to work, to function effectively, to
feel any joy in what they’re doing in their
work or personal lives. These are brain
diseases and they need treatment. And
yet, so often in the legal or general press
and in other settings, there’s ridicule. In
our profession, we’ll hear statements like
26 Bench&Bar of Minnesota s March 2016
somebody “just can’t cut it.” Or “they
can’t handle their liquor.” Things like
that. If we pay attention to these issues in
each other, maybe we can start to make
a difference.
This isn’t a lawyer assistance program
issue. It’s a profession issue. It’s up to all
of us to be mindful that something we say
can make the difference in someone getting or not getting the help that they need.
B&B: What advice do you have for someone who’s concerned about a colleague’s
drinking or personal affect or energy level?
What should they do?
Bibelhausen: They can get coaching
from a lawyer assistance program on how
to talk to somebody with dignity, compassion, and respect. We can hear what the
concerns are and talk about how to reach
out. Lawyer assistance programs are confidential—particularly in Minnesota, where
I think we have the highest confidentiality
rules in the country. If someone calls LCL
we’ll ask questions and offer guidance and
suggestions. If it seems it might be helpful
to involve some of our volunteers—many
of whom are in recovery themselves—we
can put that in place.
Sometimes a lawyer will say “I’m not
hurting anybody else. I haven’t missed a
court date. I haven’t gotten a complaint
from the Lawyers Board.” Yet they’re really not bringing their A game. That’s
the question to ask: Are you impacted
by what might be a mental health issue
or by the use of alcohol or other substances? And is it enough to make a difference in how you’re performing personally and professionally? In some cases we
can facilitate an intervention, for either
substance use or mental health issues.
Reaching out to someone in a group setting can be very powerful and motivating.
It’s important to recognize that lawyer assistance programs in each state approach things differently. In some states,
such as Wisconsin, when a lawyer is involved with the discipline system and
has an alcohol problem, discipline and
the lawyer assistance system may work
together. In Minnesota, if people wonder
when LCL is going to talk to the Office
of Lawyers Professional Responsibility,
the answer is never. We want people to
feel they can call us, regardless of what’s
going on, and get help. LCL will not report to the Office of Lawyers Professional
Responsibility (and under MRPC Rule
8.3(c) we’re exempt from doing so), will
not report to a law school, will not report
to an employer. Someone can call us and
ask for help and it will be nonjudgmental
and absolutely confidential. We’ll refer
them to the help they need, which includes up to four free counseling sessions
throughout Minnesota.
We want to hear from people
who have ideas about how to get the
profession talking about these kinds
of issues. What can we do to improve
those statistics? What can we do to get
the resources out to the people who
need them? We’re interested in working
together, because we’re better together.
This is not just an LCL issue; it’s an issue
for everyone in the profession. It’s an
issue for every legal employer who now
knows that their lawyers in the first 10
years are most distressed. LCL can
help. There are many who need us who
have not been comfortable calling. The
entire profession can be an ally in helping
lawyers, judges and law students know
that it’s okay to ask for help and there’s a
safe place to call.
“In Minnesota, if people
wonder when LCL is going to
talk to the Office of Lawyers
Professional Responsibility,
the answer is never.”
The profession could support lawyers’
assistance at a much higher level. Most
lawyers’ assistance programs are woefully
underfunded. Minnesota is supported in
part by a portion of the lawyer license
fee, but we also must fundraise. We don’t
have enough to do a lot of the work that
we would like to do. This is a critical issue in our profession. It doesn’t have to
be this way. We don’t have to have these
rates of substance use, we don’t have to
have these rates of depression and anxiety, and we don’t have to have 11 percent
of the people who answered this survey
saying they’ve had thoughts of suicide.
That’s horrifying. We can change that
and we need to. s
JOAN BIBELHAUSEN,
J.D. University of
Minnesota, is executive
director of Minnesota
Lawyers Concerned for
Lawyers. She has spent
more than two decades
working with lawyers
who are at a crossroads
because of mental illness and addiction concerns
as well as work/life balance, stress, and related
issues. She has served on the ABA Commission
on Lawyers Assistance Programs (CoLAP) and is
currently on its Advisory Commission. [email protected]
www.mnbar.org
Albert interview continued:
“We saw men experience
depression at a higher
rate than women did.
But women had a higher
rate of anxiety.”
B&B: What sort of gender gap did you
see in the mental health categories?
Albert: We saw men experience depression at a higher rate than women did.
But women had a higher rate of anxiety.
That was interesting. I would have anticipated seeing a higher rate of depression among women. Anecdotally, we
think about women being more likely to
go in to their doctors and talk about depression and seek help for it. But within
the legal field, we found that men scored
higher for depression on our instrument.
B&B: Why the spike in problem drinking
among younger lawyers, do you think?
Albert: We think it’s really a confluence of factors that could be pushing
that. Certainly the changes in our economy since 2008 have changed the options
for young lawyers, with fewer job options.
www.mnbar.org
There are generational differences with
our younger lawyers where many of them
are wanting to be in the larger cities and
they aren’t willing to relocate out into the
rural areas, so maybe they aren’t finding
the work.
Their large level of student loan debt
[is a factor]. It’s very expensive to go to
law school, and most law students enter
law school believing they will get a lucrative position, and then they find upon
graduating that it’s difficult to get a job
and the starting salaries aren’t sufficient
for them to both support other expenses
and pay off their student debt. So they
end up putting off traditional developmental milestones such as marriage,
having children, buying homes. And the
pressures they feel financially can impact
their health and well-being. For some,
[there is] a sense of disillusionment about
what they thought practicing law was going to bring them versus what it does.
So they experience a lot of stress, which
results in depression and anxiety. And
some use alcohol to cope. It’s just a very
difficult time for young lawyers.
B&B: One factor that always comes
up in discussions about lawyers and issues
of alcohol abuse or depression is the abiding fear in the profession about having one’s
reputation damaged if one comes forward
with chemical or mental health issues. Are
we making progress on that stigma? Has it
lessened through the years?
Albert: Well, from the data in our
study, what we found is that that is a
huge barrier to lawyers getting the help
that they need. So I certainly can’t say
there’s evidence that it is decreasing.
There is a messaging system that law students and lawyers seem to adhere to that
says, don’t get help—because if you do,
it’s not going to be good for you professionally. The permission to seek help is
not there. That’s going to take a systemwide response for all entities within the
legal profession that interface with law
students and lawyers and judges. They
need to be giving a different message, and
that will take some time.
Lawyer assistance programs have been
working on this for the past 30 years, but
my belief is that it has to expand well
beyond lawyer assistance programs. This
has to be taken on in strategic plans of
lawyer regulation and bar administration
and law schools and large firms. Any entity that interfaces with legal professionals needs to take a look at what we can
do differently to encourage legal professionals to believe it’s okay to have a problem, that it’s okay to be a human being,
that you’ll have the support you need as
long as you’re addressing this and going
in a healthy direction.
Illustration by Grandfailure © istockphoto.com
That was certainly a surprise—to see that
there was such a jump in the percentage
of lawyers experiencing depression.
B&B: With respect to both drinking and
depression, there were gender gaps in the
results. What did you make of those?
Albert: The gender gap has been demonstrated pretty consistently in the research on alcohol use disorders, where
men are experiencing this at a higher
rate than females are. Certainly there
isn’t anything from our study that can let
us say, this is why. I think from being in
the field myself as a licensed alcohol and
drug therapist and mental health therapist, I can say that the culture influences
that—that women will say there’s more
permission for men to go out and drink
together. Even though women have become much more engaged in careers and
out in the community, there still isn’t the
same type of acceptance for women to go
out and drink hard in our culture as there
is for men.
The other thing we don’t know is
whether, because of women feeling more
of a stigma about their drinking and being more likely to hide their use of alcohol, they just aren’t reporting it at that
level. So I can’t tell you definitively.
Some of the things women have told us
about the culture and the stigma could
certainly impact that.
“[O]verwhelmingly, the
data demonstrated that
there was a fear of telling
anybody—even going to
a self-help group.”
But also [there’s a need] to address the
parts of the culture where law students
talk about the competitive nature in law
schools and the stress they feel from that,
and lawyers talk about the adversarial,
competitive nature of practice, but they
leave themselves out of the equation.
The teaching and the messaging from all
systems has to be, “Keep yourself in the
equation. Be very intentional about your
health and wellness.” You know, health
and wellness is not fluff. There’s so much
rhetoric about it, but lawyers and law students have to be very intentional to stay
well in this profession. s
LINDA ALBERT, a Licensed
Clinical Social Worker
(LCSW) and a certified
alcohol and drug counselor,
is employed by the State
Bar of Wisconsin as the
manager of the Wisconsin Lawyers Assistance
Program. She is co-author
of the ABA/Hazelden Betty Ford collaborative
research study on the current rates of substance
use, depression and anxiety within the legal
community.
[email protected]
March 2016 s Bench&Bar of Minnesota 27
Notes Trends
Notes&Trends
Current developments in Judicial Law, Legislation, and Executive Action together with a foretaste
of Emergent Trends in law and the legal profession for the complete Minnesota lawyer.
28 Bankruptcy
by Patrick C. Summers
[email protected]
28 Criminal Law*
by Frederic Bruno
[email protected]
& Samantha Foertsch
[email protected]
30 Employment & Labor Law*
by Marshall H. Tanick
[email protected]
30 Environmental Law*
by Jeremy Greenhouse
[email protected]
32 Family Law
by Jaime Driggs
[email protected]
33 Federal Practice*
by Josh Jacobson
[email protected]
34 Immigration Law*
by R. Mark Frey
[email protected]
35 Intellectual Property
By Tony Zeuli
& Joe Dubis
[email protected]
36 Probate & Trust Law
By Robin Tutt
[email protected]
36 Real Property
by Michael Kreun
[email protected]
38 Tax*
By Morgan Holcomb
& Jessica Voigt
[email protected]
39 Torts & Insurance
by Jeff Mulder
[email protected]
* The online version of this section
contains additional case note content.
See www.mnbenchbar.com
28 Bench&Bar of Minnesota s March 2016
BANKRUPTCY
JUDICIAL LAW
n Chapter 13 debtor fails to disclose
post-confirmation employment discrimination suit; summary judgment
granted due to judicial estoppel. The
order confirming the Chapter 13 plan
of debtor Jones included a requirement
that debtor report any lawsuits “received
or receivable” during the term of the
plan. Subsequently, debtor filed a charge
of employment discrimination, received
a right to sue letter, and commenced a
state court lawsuit against his former
employer, Bob Evans Farms. He did not
report the suit to the Chapter 13 trustee.
The defendant removed the state court
case to federal district court. After the
Chapter 13 case was terminated and
debtor’s debts were discharged, defendant Bob Evans Farms brought a motion
for summary judgment. The court
granted the motion, holding that debtor
was judicially estopped from pursuing
his claims due to non-disclosure in the
bankruptcy case. Debtor filed a motion
to reopen the Chapter 13 case, filed
amended schedules disclosing the pending claims, and asked the district court
to reconsider. The district court declined
to modify its order.
On appeal, the 8th Circuit applied
the three factors from New Hampshire v.
Maine, 532 U.S. 742 (2001) to affirm the
district court, specifically responding to
various arguments made by the National
Association of Consumer Bankruptcy
Attorneys in its amicus brief. First, it
held that debtor took inconsistent positions in his Chapter 13 case and the discrimination case, by representing in the
Chapter 13 case that no claims existed.
The 8th Circuit noted that a Chapter
13 debtor who fails to timely amend
schedules to reflect a post-petition cause
of action takes an inconsistent position.
Second, the 8th Circuit held that the
bankruptcy court, by discharging debtor’s debts, “adopted his position that
his discrimination claims did not exist.”
Third, the 8th Circuit held that debtor
could have obtained an unfair advantage
in the bankruptcy case by concealing
the claim. The 8th Circuit used a similar
analysis when affirming a dismissal based
on judicial estoppel for failure to disclose
claims in a Chapter 13 case in Van Horn
v. Martin, No. 15-1710 (8th Cir. 2/11/16).
Jones v. Bob Evans Farms, No. 15-2068
(8th Cir., 1/26/16).
– Patrick C. Summers
DeWitt Mackall Crounse & Moore S.C.
CRIMINAL LAW
JUDICIAL LAW
n DWI: No warrant required for
chemical test of lawfully obtained blood
sample. Respondent was charged with
criminal vehicular operation after a twovehicle accident. After respondent was
loaded into an ambulance, police read to
her the implied consent advisory, while
a detective worked to obtain a search
warrant for a blood draw. At the hospital,
respondent was given an opportunity
to speak with an attorney, and agreed
to submit to a blood test. When the
detective arrived at the hospital with the
search warrant, respondent requested a
breath test. A PBT showed a reading of
0.00. Respondent’s blood was drawn, after which respondent told police she was
taking Lorazepam and Wellbutrin. The
BCA tested respondent’s blood twice,
first finding no alcohol, but later finding
the presence of a metabolite of THC and
Alprazolam, both of which are controlled
substances under MN law. Respondent
had a valid prescription for Alprazolam.
The district court granted respondent’s motion to suppress the evidence
of the presence of drugs in the blood
sample, finding that the blood sample
was lawfully obtained under the search
warrant, and that the testing of the
sample for alcohol was lawful, but that
the subsequent testing for the presence of
drugs was unlawful. The state appealed.
In this case of first impression, the
court of appeals holds that, if the state
lawfully obtains a blood sample for the
purpose of chemical analysis, then a
chemical analysis of the sample that
does not offend standards of reasonableness is not a separate search requiring
a warrant. Schmerber v. California, 384
U.S. 757 (1966), treated the seizure and
separate search of the blood as a single
event for 4th Amendment purposes.
Under Schmerber, any chemical analysis of a lawfully obtained blood sample
need only be reasonable. Skinner v. Ry.
www.mnbar.org
Notes&Trends
Labor Execs.’ Ass’n, 489 U.S. 602 (1989),
stated that a chemical analysis of a blood
sample to obtain physiological data is a
“further invasion” of the tested person’s
privacy rights. The court of appeals
finds this language to be dictum, which
concerned testing for medical facts
about a person unrelated to the government’s investigation for drugs or alcohol,
and points out that the Skinner court’s
conclusions regarding alcohol and drug
testing of railroad employees to ensure
railroad safety have no bearing on the
issue presented in this case.
The court of appeals concludes that
a person loses an expectation of privacy
in the blood sample once the sample has
been lawfully removed from the body.
As such, a subsequent chemical analysis of the sample is not a distinct 4th
Amendment event, and only a standard
of reasonableness controls the analysis.
Here, the test for controlled substances
in respondent’s blood does not raise
concerns of reasonableness. Because the
sample of respondent’s blood was taken
pursuant to a search warrant, the subsequent chemical tests for alcohol and
drugs did not violate the 4th Amendment. The district court’s suppression
order is reversed. State v. Debra Lee
Fawcett, Ct. App. 1/11/2016.
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The district court ordered him to pay
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identity theft statute. The district court’s
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rejected Moua’s due process challenge to
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March 2016 s Bench&Bar of Minnesota 29
Notes&Trends
restitution hearings. In fact, he succeeded in persuading the district court to
limit the number of restitution recipients
to 15 individuals.
The court also finds that all individuals whose names and private identifying
information were stolen incurred loss
or harm as a result of Moua’s conduct,
and are entitled to the $1,000 minimum
restitution obligation. A direct victim
of identity theft is entitled to minimum
restitution of $1,000 under Minn. Stat.
§609.527, subd. 4(b), and a direct victim
is defined as anyone whose identity was
transferred, used, or possessed. The
identity theft statute does not require a
showing of economic loss. Minnesota’s
restitution statute defines a victim as
any person who “incurs loss or harm as a
result of a crime.” Minn. Stat. §611A.01.
“Loss” is defined in economic terms, but
“harm” is not defined. The plain meaning
of “harm” includes any detrimental effects
of another’s wrongful actions, and is not
limited to measurable economic loss. The
court rejects Moua’s argument that, to
demonstrate harm, an individual must
have already taken remedial steps to protect themselves. A victim of identity theft
suffers harm at the moment of the initial
theft, which compromises their security
and may harm them indefinitely. State v.
Chao Moua, Ct. App. 1/25/2016.
n Sentencing: Motion to correct sentence is appropriate where court amends
sentence sua sponte. Three months after
appellant was sentenced for failure to
register, the court amended his sentence
sua sponte, adding a 10-year conditional
release term based on its finding that appellant was a risk level III offender. Four
years later, appellant moved to vacate
that new term of his sentence under
Minn. R. Crim. P. 27.03, subd. 9, arguing
that the conditional release term was not
supported by a jury’s finding that he was a
level III offender, and he had not waived
his Blakely right to a jury determination of
this fact. The district court converted the
motion to a petition for postconviction
relief, and denied it as time-barred.
Held, it was appropriate for appellant
to challenge his sentence under Minn. R.
Crim. P. 27.03, and the district court’s fact
finding that he was a risk-level-III offender violated Appellant’s 6th Amendment
right to a jury. A challenge under Rule
27.03 is proper if it challenges a sentence
on the grounds that “the sentence is contrary to an applicable statute or other applicable law.” Appellant’s motion sought
only to remove a term of his sentence not
authorized by law, and does not in any
way implicate either his conviction or the
procedure leading to his conviction.
30 Bench&Bar of Minnesota s March 2016
State v. Her, 862 N.W.2d 692 (Minn.
2015), made clear that the 6th Amendment right to a jury trial restricts the
imposition of a 10-year conditional
releases term based upon a defendant’s
status as a risk level III offender to those
cases where the status is either admitted by the defendant or found by a jury.
The district court violated this rule,
and the case is remanded for resentencing. Whether a sentencing jury is to be
impaneled on remand is left to the district
court. Willie Edd Reynolds v. State, Ct.
App. 1/25/2016.
– Frederic Bruno
– Samantha Foertsch
Bruno Law
denied unemployment compensation
benefits because she used court resources to conduct a personal business she
operated while at work. The appellate
court cited violation of court policy to
deny benefits on “misconduct” grounds.
Baker v. Minn. State Supreme Court,
2016 Minn. App. LEXIS 35 (Minn.
App. 2016) (unpublished).
ADMINISTRATIVE LAW
n Unemployment. The Obama administration has proposed new programs
for unemployed workers under the
president’s budget, which is subject to
Congressional approval. Employees who
lose their jobs and are entitled to unemployment compensation benefits could
EMPLOYMENT
receive a maximum of $10,000 over a
two-year period to replace up to half of
& LABOR LAW
their lost wages when they take a new,
JUDICIAL LAW
lower paying job. The proposal would
n Race discrimination; reverse bias
only apply to employees making less than
verdict. A jury verdict of racial discrimi- $50,000 annually who worked for their
nation in favor of a white police officer
previous employer for three years, and
who was bypassed for a high-profile
would not cover employers fired for “misposition with a police training academy
conduct” and those who are ineligible for
in favor of an African-American woman benefits because they voluntarily resigned
was upheld on appeal. The 8th Circuit
without “good reason” caused by their
Court of Appeals affirmed the “reverse” employer and for non-medical reasons.
bias verdict on grounds that the white
The new wage supplement is coupled
claimant suffered an adverse change in
with other unemployment initiatives,
working conditions by not being award- such as expanded coverage for part-time
ed the job. Bonenberger v. St. Louis
and intermittent employees, as well as
Metro. Police Dept., 956 F.Supp.2d 1059 a requirement that all states provide 26
(8th Cir. 2016).
weeks of benefits, as all states now do,
including Minnesota.
n Whistleblowing; statute of limitations
extended. Overruling case law and two
n Equal pay. The Obama administration
also has extended its efforts to enforce
decades of practice, the Minnesota Suequal pay in laws for women. The Equal
preme Court has expanded the statute
of limitations for most whistleblowing
Employment Opportunity Commission
claims. It held that the period for bring- (EEOC) is requiring employers with 100
ing claims under Minn. Stat. §181.931,
or more employees to submit detailed
is six years for a claim arising under
data about compensation practices in
order to determine compliance with
a statute, Minn. Stat. §541.05, subd.
1(2), rather than two years, as for most
equal pay laws. The initiative expands
employment claims. Ford v. Minneapolis a program started by the administration
Public Schools, 2016 Minn. App. LEXIS in 2014 requiring federal contractors to
153 (Minn. App. 2016) (unpublished).
provide a breakdown of data regarding
compensation and classifications on
gender, race, and various protected clasn Retaliation; fee sanction upheld. A
$10,000 fee award was upheld against
sifications.
a pro se litigant claiming retaliation
– Marshall H. Tanick
under the Minnesota Human Rights
Hellmuth & Johnson, PLLC
Act. The court of appeals ruled that the
trial judge correctly determined that
ENVIRONMENTAL LAW
the employee was not terminated but
voluntarily resigned and imposed the fee
JUDICIAL LAW
sanction. Liu v. Waymouth Farms, Inc., n High court stays clean power plan.
2016 Minn. App. LEXIS 76(Minn. App. On 2/9/2016, in a half-page order, the
U.S. Supreme Court unexpectedly
2016) (unpublished).
stayed the EPA’s “Clean Power Plan”
n Unemployment compensation; mis(CPP), a set of performance standards
use of resources. A clerical employee
aimed at reducing carbon emissions from
with the Minnesota appellate courts was existing power plants in the U.S. by 32
www.mnbar.org
Notes&Trends
percent compared to 2005 levels. EPA,
Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility
Generating Units, 80 Fed. Reg. 64,662
(10/23/2015). The ruling is a significant
blow to the Obama administration’s
climate agenda, which significantly relies
upon the CPP to further domestic and
international pledges to reduce greenhouse gas emissions. The Court’s 5-to-4
order specifies that the stay will remain
in effect pending not only a ruling by the
U.S. Court of Appeals for the District of
Columbia Circuit in the case, but also
the disposition of any petitions to the
high court to review that ruling. Justices
Ginsburg, Breyer, Sotomayor and Kagan
opposed granting the stay. West Virginia, et al. v. EPA, et al. (U.S. Supreme
Ct. No. 15A773).
n District of Minnesota declines to
review State Department pipeline determinations. On 12/9/2015, the United
States District Court for the District of
Minnesota held that actions of the U.S.
State Department taken pursuant to
presidential permits were not reviewable
by the court under the Administrative
Procedures Act (APA), 5 U.S.C §701 et
seq. The case concerns two oil pipelines
owned and operated by Enbridge, Inc.,
that cross the United States/Canada
border—Line 3, which was constructed
in the late 1960s, and Line 67 (also
known as the Alberta Clipper Pipeline),
which was constructed in the late 2000s
following environmental review under
the National Environmental Policy Act
(NEPA). Because both lines cross the
border, they are subject to the president’s inherent constitutional authority
concerning foreign relations and operate
under “presidential permits” issued by
the U.S. Secretary of State exercising
delegated power. The State Department
issued Line 3’s presidential permit in
1991 and issued Line 67’s permit in 2009.
In 2012, Enbridge applied for an
amendment to the presidential permit
for Line 67 to increase the permitted carrying capacity of the line by
almost 100 percent. The State Department initiated a supplemental environmental impact process for this expansion
project, which is still ongoing. Meanwhile, in 2014, the State Department
approved Enbridge’s plan to replace a
significant portion of Line 3, finding the
replacement plan was consistent with
the terms of the existing 1991 presidential permit for that pipeline. Also in
2014, the State Department concluded
that Enbridge’s proposed interconnections between the two pipelines did not
require authorization from the State
www.mnbar.org
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(612) 333-1183
(800) 882-6722
SOCIAL SECURITY DISABILITY
InITIAL AppLICATIOn ThROUgh hEARIng
paul
Livgard
612-825-7777
www.livgard.com
Successfully pursuing benefits since 1993
Rachael
Abrahamson
March 2016 s Bench&Bar of Minnesota 31
Notes&Trends
Department because the connecting
pipelines are located outside of the
border segments for both lines.
Plaintiffs in the case challenged the State Department’s decisions that it did not need to authorize
the interconnecting pipelines and that
the Line 3 replacement project was
consistent with the 1991 presidential
permit. These decisions violated NEPA
and NHPA, plaintiffs argued, by: (1)
authorizing new, high-capacity pipelines without any NEPA or NHPA
compliance; and (2) short-circuiting
an ongoing NEPA and NHPA review of the Line 67 Expansion Project. Plaintiffs’ claims of violations of
NEPA and NHPA were brought under
the APA, which provides for a private
right of action and a waiver of sovereign
immunity for claims challenging agency
action. In rejecting plaintiffs’ arguments,
the court noted the well-settled law
that presidential actions are not agency
actions that are reviewable under the
APA. The court concluded that the
State Department’s decisions on the
pipelines were presidential in nature,
within the scope of the department’s
delegated power. Thus, the court
held—in accordance with principles of
separation of powers—that the determinations were not agency actions subject
to judicial review under the APA. The
court granted Enbridge’s motion for
partial summary judgment. White Earth
Nation, et al., v. Kerry, No. 14-4726 (D.
Minn. 12/9/2015). ADMINISTRATIVE ACTION
lowed only in limited circumstances, and
that certain outstanding water resources
will be protected.
Whereas Minnesota’s existing
nondegradation rules apply to “new or
expanded discharges” to waters of the
state, the proposed requirements would
be triggered upon the issuance of new,
reissued, or modified individual NPDES
wastewater, industrial stormwater and
construction stormwater permits which
are reasonably anticipated to result in
net increases in loading or other causes
of degradation to surface waters. The
proposed rules remove a de minimis provision in the current rules that exempts
discharges that are not “significant” from
certain of the rule’s requirements. The
proposed rules also include specific antidegradation procedures and standards
relating to 401 certifications, particularly
with regard to certification of section
404 permits. Notably, MPCA’s proposed
rules do not include any substantial
changes to nondegradation requirements set forth in chapter 7052 (Lake
Superior Basin) or 7060 (groundwater).
MPCA will hold public hearings on the
proposed rules on 3/31/2016.
– Jeremy P. Greenhouse
The Environmental law Group, Ltd.
For more information and to view background documents and links associated with
these updates, please visit Jeremy’s environmental law blog, Fire on the River, at
www.jeremygreenhouse.com.
FAMILY LAW
JUDICIAL LAW
n Spousal maintenance; spending
n MPCA proposes revised antidegrada- assets in retirement. A recent
unpublished decision from the court of
tion rules. On 2/1/2016, the Minnesota
Pollution Control Agency (MPCA)
appeals addresses a question that will be
placed on public notice proposed
raised with increasing frequency as more
spousal maintenance obligors retire from
amendments to Minnesota’s water
employment: To what extent are spousal
quality standards governing nondegradation/antidegradation. The proposed
maintenance obligees expected to fund
rules would repeal Minnesota’s current
their retirement by spending down their
“nondegradation” rules in Minn. R.
assets?
Husband brought a motion to termi7050.0185 and 7050.0180 and replace
them with a more extensive set of
nate his permanent spousal maintenance
obligation to wife in connection with his
“antidegradation” rules designed to be
consistent with federal antidegradation
retirement from employment. In analyzpolicy set forth in 40 C.F.R. §131.12.
ing wife’s ongoing need for spousal maintenance, the district court found that she
Antidegradation is a key component of
state water quality standards. It stems
would be able to meet her monthly living
expenses through the end of her life exfrom the Clean Water Act’s goal to
“restore and maintain the chemical,
pectancy by withdrawing the interest and
physical and biological integrity of the
principal of a defined contribution retirement account that had been awarded
Nation’s waters.” Federal antidegradation policy requires states to adopt
to wife as part of the original division of
policies and implementation procedures property. For that reason, wife no longer
to ensure that existing uses of waters will had a need for spousal maintenance and
be maintained, that lowering of water
the district court terminated husband’s
spousal maintenance obligation.
quality in high quality waters will be al32 Bench&Bar of Minnesota s March 2016
Wife appealed, arguing that the
district court abused its discretion in
terminating husband’s spousal maintenance obligation because it forced wife
to deplete her property award in order
to fund her living expenses. However,
wife acknowledged on appeal that she
could presently meet her monthly living
expenses by spending the investment
return on her retirement account which
had been generated after the divorce.
Wife’s main criticism is that once the
investment return was depleted, she
would then be forced to spend down the
portion of the retirement account that
had been awarded to her as property.
The court of appeals agreed with wife
that the district court had erred by requiring her to spend down the principal
of the retirement account. The district
court’s decision was contrary to a long
line of cases standing for the proposition that spousal maintenance obligees
are not required to spend the principal
of their property awards to meet their
monthly needs. The court of appeals offered several reasons why it was unreasonable to create an exception to this
precedent. First, there was no rational
distinction between retirement accounts
and other assets. Second, forcing wife to
spend the principal of her retirement assets was unfair to wife because husband
continued to have income from which
to pay spousal maintenance to wife.
Third, creating an obligation to spend
down retirement assets would make it
more difficult for parties to settle the division of property because it would create a disincentive for obligees to agree
to be awarded retirement assets. Fourth,
creating an exception to the general rule
that obligees are not required to spend
down property to meet their needs was
unwise in this case because it was speculative whether wife would ever actually
need to deplete the principal of her
retirement account during her lifetime.
The court of appeals stated in its
opinion that it was affirming the district
court’s termination of spousal maintenance and that it was reversing and remanding for the district court to reserve
jurisdiction over spousal maintenance.
(This characterization of its holding is
puzzling, because the court of appeals
agreed with the district court’s conclusion that husband should not be paying
any spousal maintenance but it rejected
the district court’s termination of spousal
maintenance, which is why it remanded
for a reservation of spousal maintenance.) Winer v. Winer, A15-0339,
2/8/16 (unpublished).
– Jaime Driggs
Henson & Efron PA
www.mnbar.org
Notes&Trends
FEDERAL PRACTICE
JUDICIAL LAW
n Unaccepted offer of judgment does
not moot class claims. Affirming the
9th Circuit, the U.S. Supreme Court
held 6-3 that an unaccepted offer of
judgment to the plaintiff under Fed. R.
Civ. P. 68 does not moot putative class
action claims. However, all may not be
lost for class action defendants seeking
to moot claims, because the majority
opinion noted that it was not deciding
“whether the result would be different
if a defendant deposits the full amount
of the plaintiff’s individual claim in an
account payable to the plaintiff, and
the court then enters judgment for the
plaintiff in that amount.” CampbellEwald Co. v. Gomez, 136 S. Ct. 663
(2016).
n Voluntary dismissal of claims to
permit review of order denying class
certification; certiorari granted. The
U.S. Supreme Court recently granted
certiorari on the question of whether a
federal court of appeals has jurisdiction
to review an order denying class
certification after the named plaintiffs
voluntarily dismiss their claims with
prejudice in an attempt to create an
appealable final judgment. According to
the petition for certiorari, five circuits
currently bar appeals under these facts
while two circuits would allow these
appeals.
And while it appears that the
8th Circuit has never addressed this
question, it has repeatedly permitted
plaintiffs to create appellate jurisdiction
by dismissing non-class action claims.
Microsoft Corp. v. Baker, 797 F.3d 607
(9th Cir. 2015), cert. granted, ___ S. Ct.
___ (2016).
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Scott Borene
[email protected]
n Multiple requests for injunctive relief
denied. Judge Frank denied the plaintiff’s
request for a preliminary injunction in
the battle over signage in the vicinity
of the new Vikings stadium, finding any
monetary damage to the plaintiff to be
“speculative,” and that the plaintiff’s
delay in seeking injunctive relief
“undermine[d]” its claim of irreparable
harm. Judge Frank also held that a
contractual agreement providing that
the plaintiff would be irreparably harmed
“d[id] not bind” the Court and “without
more, [was] insufficient to establish
irreparable harm.” Minnesota Vikings
Football Stadium, LLC v. Wells Fargo
Bank, N.A., 2016 WL 355070 (D. Minn.
1/28/2016).
Despite finding that the plaintiff had
shown a likelihood of success on the
www.mnbar.org
March 2016 s Bench&Bar of Minnesota 33
Notes&Trends
merits and that the defendants were
likely to “have to write a large check
to the plaintiff,” Judge Schiltz denied
the plaintiff’s motion for a preliminary
injunction in a non-compete and trade
secrets case, finding that any injunction
was likely to harm one defendant more
than it would help the plaintiff. Wells
Fargo Ins. Servs. USA, Inc. v. King,
2016 WL 299013 (D. Minn. 1/25/2016).
Judge Frank denied the plaintiff’s
second request for a temporary restraining order in a trademark action, finding
that it had “failed to identify any facts
that [were] materially different than the
facts before the Court at the time of its
first motion.” Joy Group Oy v. Supreme
Brands L.L.C., 2016 WL 410272 (D.
Minn. 2/2/2016).
n ADA; lack of standing. Judge Ericksen
dismissed the plaintiffs’ ADA claim
and related request for injunctive
relief premised on allegedly inadequate
handicapped parking spaces at a
shopping center, where the parking lot
deficiencies alleged in the complaint had
been cured prior to the commencement
of the action. Disability Support
Alliance v. Geller Family L.P. III, 2016
WL 424970 (D. Minn. 2/3/2016).
n Motion to compel deposition of
former counsel granted. Magistrate
Judge Noel granted the defendant’s
motion to compel the deposition of
counsel for the plaintiff in a previous
related action, finding “[t]he fact that
certain areas of inquiry of the deposition
may implicate the attorney-client or
work product privileges, [did] not
shield [the attorney] from deposition
altogether.” Moldex Metric, Inc. v.
3M Co., 2015 WL 9859754 (D. Minn.
10/28/2015).
n Motion to compel production of
documents shown to expert denied.
Judge Montgomery overruled objections
to an order by Magistrate Judge Brisbois
that had denied the plaintiff’s motion
to compel the production of documents
disclosed to the defendants’ expert
witness, agreeing with Magistrate Judge
Brisbois that the documents were
subject to protection as work product
and that privilege had not been waived
under the 2010 amendments to Fed.
R. Civ. P. 26. Judge Montgomery also
rejected the plaintiff’s argument that
Magistrate Judge Brisbois had erred in
permitting the defendants to produce
a redacted version of one document
without first reviewing the document
in camera. James River Ins. Co. v.
Interlachen Propertyowners Ass’n, 2015
34 Bench&Bar of Minnesota s March 2016
WL 9946407 (D. Minn. 12/21/2015),
aff’d, 2016 WL 386032 (D. Minn.
2/1/2016).
– Josh Jacobson
Law Office of Josh Jacobson
IMMIGRATION LAW
JUDICIAL LAW
n No procedural error for failure to
inform petitioner about political asylum
or other forms of relief. The 8th Circuit
Court of Appeals found that, under the
circumstances presented, the immigration judge did not commit a fundamental
procedural error by failing to inform the
petitioner about political asylum or other
possible avenues of relief. There was, as a
result, no due process violation. AlvaArellano v. Lynch, No. 14-2957, slip
op. (8th Cir. 2/2/2016). http://media.ca8.
uscourts.gov/opndir/16/02/142957P.pdf
n Solicitation of prostitution in Minnesota is a crime of moral turpitude. The
8th Circuit Court of Appeals held that
the petitioner’s conviction for soliciting prostitution in violation of Minn.
Stat. §609.324, subd. 2 (2006), was a
“crime involving moral turpitude” and
therefore found the Board of Immigration Appeals did not abuse its discretion when denying the petitioner’s
motion to reopen. Gomez-Gutierrez v.
Lynch, No. 14-3374, slip op. (8th Cir.
1/29/2016). http://media.ca8.uscourts.gov/
opndir/16/01/143374P.pdf
for permanent residence and waiver
of removal (fraud waiver) under the
Violence Against Women Act (VAWA)
while noting at the same time problems
with the petitioner’s credibility. MutieTimothy v. Lynch, No. 14-3671, slip op.
(8th Cir. 1/28/2016). http://media.ca8.
uscourts.gov/opndir/16/01/143671P.pdf
n False claim to U.S. citizenship is a
non-waivable violation. The 8th Circuit
Court of Appeals held the Board of
Immigration Appeals’ finding that the
petitioner falsely represented himself on
a Form I-9 as a U.S. citizen, and not a
national, was supported by substantial
evidence. “Based on Godfrey’s testimony, his prior false claims of citizenship, and the false claim of citizenship
he made after removal proceedings
commenced, the BIA’s and IJ’s finding
that Godfrey falsely represented himself
to be a ‘citizen’ is supported by substantial evidence.” That false claim of U.S.
citizenship was a non-waivable violation, thereby eliminating any prospect of
obtaining permanent residence. Godfrey
v. Lynch, No. 15-1027, slip op. at 8 (8th
Cir. 1/22/2016). http://media.ca8.uscourts.
gov/opndir/16/01/151027P.pdf
n Breach of employment contracts
for H-2B temporary workers. The 8th
Circuit Court of Appeals reversed the
U.S. District Court’s (Eastern District of
Arkansas—Little Rock) dismissal of the
H-2B temporary workers’ breach of contract and tax fraud claims, finding the
n Dismissal of challenge to USCIS
complaint “sufficiently alleged that they
revocation of I-140 for lack of jurisdichad employment contracts with Degtion is proper. The 8th Circuit Court of
geller, the terms of which included the
Appeals held that the U.S. District Court Department of Labor’s prevailing wage.
(District of Nebraska) did not commit
The complaint therefore stated a valid
error when finding it lacked jurisdiction
claim that Deggeller breached those
to consider whether USCIS failed to
contracts by failing to pay the required
comply with disclosure requirements un- wage.” Cuellar-Aguilar v. Deggeller
der 8 CFR §103.2(b)(16) at the time it
Attractions, Inc., No. 15-1219, slip op. at
revoked the plaintiff-beneficiary’s I-140
10 (8th Cir. 12/15/2015). http://media.ca8.
immigrant petition for foreign national
uscourts.gov/opndir/15/12/151219P.pdf
worker; that the plaintiff could not, as
a result, port his I-140; and, therefore,
n The U.S. Department of Labor’s H-1B
plaintiff was ineligible to adjust his status investigation was unauthorized. The
to permanent residence. Rajasekaran v.
8th Circuit Court of Appeals held the
th
Hazuda, No. 14-3623, slip op. (8 Cir.
Department of Labor’s findings of H-1B
1/29/2016). http://media.ca8.uscourts.gov/ temporary worker visa violations and
opndir/16/01/143623P.pdf
awards against the plaintiff, Greater Missouri Medical Pro-Care Providers, could
n No jurisdiction to review discretion- not stand since they were based on DOL
ary denial of VAWA petitioner’s appliSecretary Thomas Perez’s unauthorcations for permanent residence and
ized investigation of matters beyond
waiver of removal. The 8th Circuit Court that of the aggrieved-party complainof Appeals held it lacked jurisdiction
ant, Alena Gay Arat. Greater Missouri
under Hailemichael v. Gonzales, 454 F.3d Medical Pro-Care Providers, Inc. v.
878 (8th Cir. 2006) to review the Board
Perez, No. 14-3717, slip op. (8th Cir.
of Immigration Appeal’s discretionary
12/14/2015). http://media.ca8.uscourts.
denial of the self-petitioner’s applications gov/opndir/15/12/143717P.pdf
www.mnbar.org
Notes&Trends
ADMINISTRATIVE ACTION
n Department of Homeland Security
extends TPS designation for Sudan.
On 1/25/2016, the Department of
Homeland Security extended temporary
protected status (TPS) for Sudanese
holders of such status from 5/3/2016 to
11/2/2017. According to DHS Secretary
Jeh Johnson, such action is warranted
“because the conditions in Sudan that
prompted the 2013 TPS redesignation
continue to be met. Sudan continues
to experience ongoing armed conflict and extraordinary and temporary
conditions within the country that
prevent its nationals from returning to
Sudan in safety.” 81 Fed. Reg. 4045-51
(1/25/2016). https://www.gpo.gov/fdsys/
pkg/FR-2016-01-25/pdf/2016-01387.pdf
n Department of Homeland Security
redesignates and extends TPS for South
Sudan. On 1/25/2016, the Department
of Homeland Security redesignated
South Sudan for temporary protected
status (TPS) and extended such status
for those currently holding it from
5/3/2016 to 11/2/2017. According to
DHS Secretary Jeh Johnson, such action is warranted “because the ongoing
armed conflict and extraordinary and
temporary conditions that prompted
the 2014 TPS redesignation have
persisted, and in some cases deteriorated, and would pose a serious threat to
the personal safety of South Sudanese
nationals if they were required to return
to their country.” 81 Fed. Reg. 4051-59
(1/25/2016). https://www.gpo.gov/fdsys/
pkg/FR-2016-01-25/pdf/2016-01388.pdf
provides a subsidy to all aliens
with deferred action has Article III
standing and a justiciable cause of
action under the Administrative
Procedure Act (APA), 5 U.S.C.
500 et seq., to challenge the guidance because it will lead to more
aliens having deferred action;
2. whether the guidance is arbitrary and capricious or otherwise
not in accordance with law;
3. whether the guidance was
subject to the APA’s notice-andcomment procedures; and
4. whether the guidance violates
the Take Care Clause of the Constitution, Art. II, §3.
http://www.supremecourt.gov/qp/1500674qp.pdf
– R. Mark Frey
Frey Law Office
INTELLECTUAL
PROPERTY
JUDICIAL LAW
n Copyright: Denial of attorney’s fees.
A panel for the United States Court
of Appeals for the 8th Circuit recently
affirmed a ruling from the District
Court for the Northern District of
Iowa dismissing a lawsuit for copyright
infringement and denying defendant’s
request for attorney’s fees. Killer Joe
Nevada, LLC, sued several “John
Doe” defendants alleging copyright
infringement of the 2012 motion picture
Killer Joe. After subpoenaing internet
service providers to identify the users
of allegedly infringing internet protocol
addresses, defendant Leaverton was
identified, and the complaint was
n Department of Homeland Security
issues final rule affecting certain
amended to name her as a defendant.
worker visa classifications. On
Leaverton denied the allegations
1/15/2016, the Department of
and counterclaimed for a declaratory
Homeland Security published a final
judgment of non-infringement. Killer
Joe Nevada then moved to dismiss the
rule announcing changes to programs
serving the H-1B1, E-3, and CW-1
complaint with prejudice and to dismiss
Leaverton’s counterclaim. Leaverton
nonimmigrant classifications and the
EB-1 immigrant classifications. The final opposed the dismissal unless she was
rule becomes effective on 2/16/2016. 81 awarded attorney’s fees. The district
Fed. Reg. 2068-84 (1/15/2016). https://
court dismissed the complaint and
www.gpo.gov/fdsys/pkg/FR-2016-01-15/
counterclaim and denied the request
for fees. The 8th Circuit held the
pdf/2016-00478.pdf
district court did not abuse its discretion
LOOKING AHEAD
in denying attorney’s fees because
n U.S. Supreme Court grants cert in
the lawsuit was not unreasonable or
United States v. Texas. On 1/19/2016,
frivolous; the losing litigant, Killer
the U.S. Supreme Court granted cert in Joe Nevada, did not have improper
the case of United States v. Texas (No.
motivations in bringing the lawsuit as
15-674) to address the conflict over
evidenced by its prompt dismissal of
President Obama’s 11/20/2014 executive the complaint upon a determination
actions (guidance) concerning deferred
of non-infringement; and there was no
action for certain foreign nationals. The clear error of judgment in weighing the
questions to be addressed are:
factors. Killer Joe Nev., LLC v. Doe,
1. whether a State that voluntarily
807 F.3d 908 (8th Cir. 2015).
www.mnbar.org
March 2016 s Bench&Bar of Minnesota 35
Notes&Trends
n Patents: Federal circuit has exclusive
appellate jurisdiction. A panel for the
United States Court of Appeals for the
8th Circuit recently dismissed an appeal
from a decision from the District Court
for the District of Nebraska denying
plaintiffs partial summary judgment and
awarding defendants partial summary
judgment. Following a prior settlement
of a patent infringement dispute between
Joao Bock Transaction Systems, LLC,
(JBTS) and ACI Worldwide, Inc. (ACI),
JBTS sued Online Resources Corp., a
recently acquired subsidiary of ACI,
for patent infringement for the alleged
infringement that occurred prior to
ACI’s acquisition. ACI then sued JBTS
for breach of the settlement agreement
and for a declaratory judgment of noninfringement or invalidity of the patent
in issue. JBTS counterclaimed for breach
of the settlement agreement. The cases
were then consolidated “for all purposes.”
Upon a partial summary judgment in
favor of JBTS, ACI appealed the district
court’s ruling to the 8th Circuit along
with a corresponding cross-appeal to the
Court of Appeals for the Federal Circuit.
The 8th Circuit dismissed ACI’s appeal
because 28 U.S.C. § 1295(a)(1) grants
the Federal Circuit “exclusive jurisdiction” over appeals from the final decisions of the district courts arising under,
including the assertion of a compulsory
counterclaim, any act of Congress related
to patents. The 8th Circuit held that
appellate jurisdiction of a consolidated
case lies exclusively with the Federal
Circuit when at least some of the claims
arose under United States patent law.
In dismissing the appeal, the panel held
it was unnecessary to transfer the case
to the Federal Circuit because of the
co-pending cross-appeal filed by ACI.
Online Res. Corp. v. Joao Bock Transaction Sys., 808 F.3d 739 (8th Cir. 2015).
n Patents: Claim construction. Judge
Montgomery recently construed the
patent claims in a dispute involving the
technology to transfer an image onto
a colored base, such as a t-shirt, using heat. Plaintiff Jodi Schwendimann
asserted seven patents against defendant Arkwright Advanced Coating,
Inc. (AACI). AACI counterclaimed
by asserting two of its patents against
Schwendimann. In arguing for the
proper meaning of the primary term in
dispute, “white layer,” AACI argued
that Schwendimann’s prior responses
in an interference proceeding between
the parties at the United States Patent and Trademark Office constituted
prosecution history estoppel. During
prosecution or, in this case, an interfer36 Bench&Bar of Minnesota s March 2016
ence proceeding, a patentee may not
disclaim a claim interpretation and
then later enforce that interpretation
in an infringement action. For prosecution disclaimer to apply, the patentee’s
alleged disavowal of claim scope must
be clear and unambiguous. The court
found there was no disavowal related
to the range of melting temperatures or
the extent to which the layers mix, but
found disavowal of non-melting white
layers. The court further construed the
term “colored substrate” according to its
plain and ordinary meaning, rejecting
patentee’s construction that limited the
color of the substrate to black, white, or
a shade of the two. The court reasoned
that a claim construction that gives effect to all terms of the claim is preferred
over one that does not and that if patentee had only intended the substrate
to be black, white, or a combination of
the two, the patentee could have used
the claim term “substrate” instead of
“colored substrate.” Schwendimann v.
Arkwright Advanced Coating, Inc.,
No. 11-820 ADM/JSM, 2015 U.S. Dist.
LEXIS 161671 (D. Minn. 12/2/2015).
– Tony Zeuli
– Joe Dubis
Merchant & Gould
PROBATE & TRUST LAW
ADMINISTRATIVE ACTION
n Transcripts may serve as alternative
to estate closing letters. As previously
reported, effective for estate tax returns
filed on or after 6/1/2015, the IRS will
only issue a closing letter upon request
of the taxpayer. The IRS website now
indicates that an estate account transcript is a viable substitute to an estate
closing letter. On 12/4/2015, the IRS
published a new online procedure by
which tax professionals may register to
obtain estate account transcripts from
the Transcript Delivery System (TDS).
You must first register for IRS e-Services
in order to enroll in TDS. Transaction
Code 421 on a transcript means the estate tax return (Form 706) has been accepted as filed or that the examination is
complete. The description for Code 421
(“Closed examination of tax return”)
will be the same in all instances, regardless of whether the return was accepted
as filed or closed upon completion of
audit. Requests for transcripts will only
be processed if a properly executed
Form 2848, Power of Attorney, or Form
8821, Tax Information Authorization, is
already on file with the IRS. Transcripts
can also be requested by fax or mail using Form 4506-T, Request for Transcript
of Return. Requests (whether through
TDS or use of Form 4506-T) should not
be submitted until at least four months
after filing the estate tax return. Practitioners should be aware that certain
Treasury Regulations (e.g., §1.645-1 and
§20.2056A-2), Revenue Procedures,
and Revenue Rulings specifically refer
to “closing letters” and these items have
not yet been revised to treat a transcript with Code 421 as the functional
equivalent of a closing letter. Additional
information, including instructions on
how to register for TDS and how to
complete requests for transcripts using
TDS or Form 4506-T, can be found at
https://www.irs.gov/irspup/Businesses/
Small-Businesses-%26-Self-Employed/
Transcripts-in-Lieu-of-Estate-Tax-ClosingLetters%20-%20
n Consistent basis reporting deadline
extended to March 31. IRS Notice 201619 states that the original 2/29/2016
deadline for filing statements reporting
the basis of distributed estate property
has been extended to 3/31/2016. Notice
2016-19 advises personal representatives to wait to prepare the statements
required under section 6035 until
proposed regulations are published,
which the IRS expects will occur “very
shortly.” Section 6035 was created under
H.R. 3236, Surface Transportation and
Veterans Health Care Choice Improvement Act of 2015, which was enacted
7/31/2015. The purpose of the law is
to ensure consistent basis reporting
between estates and beneficiaries who
receive estate property. The basis reporting requirements apply only to estates
that are required to file a federal estate
tax return after 7/31/2015. For these
estates, the personal representative must
provide a statement to the IRS and
beneficiaries regarding the basis of each
asset included in the gross estate.
– Robin Tutt
Lindquist & Vennum
REAL PROPERTY
JUDICIAL LAW
n Guaranty mortgage; fraudulent
transfer. Husband and wife owned real
estate, subject to a mortgage that secured
a personal guaranty (the “guaranty
mortgage”). The property was otherwise
unencumbered. A creditor of husband
(the “creditor”) commenced suit against
husband for an unpaid debt. Husband
and wife subsequently transferred title of
the property to a limited liability company owned and directed by wife. Creditor
thereafter obtained a monetary judgment
against husband. Creditor commenced a
declaratory judgment action to declare
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i aWn pHl eEv N J uPd hEe Rr i F nOt RR dMe mA Ni v eCr E S uCp OO UT N dTe aS e s A
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Fraudulent Transfers Act (MUFTA).
h i t i o r a r d i e p l i p J S h e e n t I n d e e iv e t y S RO s e d e t e e s
stransfer
The district court held that the
r
er Gu ri R nsh vin dgm iff Rec ni rs T per rus s
violated MUFTA and voided
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u O T dea es A
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On appeal, the courteof
affirmed.
n
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e
s mthat ther s r t
a Re hi n S gm f In ece ity TR rse uste
n argued
Husband and wife
u
o
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h
t
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c under
n sT eRv iI C K
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s e m ebyn ther s h r t i o u a r d R e p hSURETY
n d c e iv i t y S T RO r s e d s t e e
S
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guaranty mortgage, oand therefore
to Ce
G a r i a n s ev i n u d g r i ff R e m n r s u p e Tr u a s
c h and
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held
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n sh
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h in
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hbeen
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because no claim of default
f
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made against the guarantyt mortgage.
i p bonding
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n the
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lender in the event of a default
i f t R company.
r i firms
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S h m e I n d c e i i t y T RO r s
once the principal mortgage is satisfied.
o
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ff
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The property owners also argued
tac erva nt C hip orar dian plev Jud heri nt R dem iver Sup O
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n h m e t o r s • eInjunction
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n
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rif nt R • em vers ed
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t a e r v a n•t License
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that the definition of insider under MUFar Re hip n S gme f Ind ecei ity p
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TA includes spouses and that MUFTAC
tac erva nt C hip orar dian plev Jud heri nt R dem es A s
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also extends to business organizations.
p
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Landmark Community Bank, N.A. v.
h
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Locally
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andeoperated.uSame
in housegauthority!
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va n t C i p G r a r d i a n l ev J u d e r i f Tr e r s e
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363521 (Minn. Ct. App. 2016).
e Eighth
A n s e 121mSouth
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S h T RO S u p
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n Zoning; legal nonconforming use.
p o r aorr Minneapolis
t (651)
i p l e v v339-5522
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e r s • [email protected]
A Fax:
349-3657
Property erected a pylon sign in 1971. In
t i u a r R e • www.pjtagency.com
ei em
n s(612)
m
r
c
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1997, it entered into a lease giving the
C tac vat t C p G ari
Re In
t
r
r
i
tenant the right to use the property and
t
n
n
e
o
A ns me rsh rti
e eriff
the sign through April 2014. Sometime
m
o
o
C tach vat t Ce udg Sh
after 1997, the city enacted an ordinance
restricting the use of pylon signs. The
At nser men ip J evin
l
parties agreed that the use of the sign
Co tach ansh Rep
constituted a legal nonconforming use
because the sign was in use at the time
At ardi ari
u ior
the ordinance was enacted. In November
G
t
2012, the tenant moved its retail operaer
C
tions to another location, but it continued to use the property for storage and
other business-related purposes for the
duration of the lease. In April 2013, the
tenant covered the sign, making it blank.
On 2/7/2014, the city zoning administrator wrote the owner declaring that the
sign had been abandoned since the property had been vacant for more than one
year. The committee of adjustments upheld the zoning administrator’s decision
and found that the tenant’s cessation of
operations constituted a discontinuation
of the use of the sign, discontinuance of
the use of the sign for one year creates a
presumption of abandonment of the sign,
and the owner failed to rebut the presumption. The city council affirmed the
decision and concluded that the sign was
abandoned because there was no business operating at the property for more
than a year. The property owner brought
a declaratory judgment action and the
district court ruled in favor of the city on
summary judgment.
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March 2016 s Bench&Bar of Minnesota 37
Notes&Trends
On appeal, the court of appeals determined that the facts were undisputed and
the interpretation of an existing ordinance is a question of law for the court
subject to de novo review. The first issue
addressed by the court was determining
the starting point for when the sign use
was discontinued. The city argued that
it started when the tenant ceased retail
operations on the property. The owner
claimed that it did not discontinue use of
the sign at any point, but at a minimum,
it could not possibly have been until the
tenant covered the sign, making it blank.
Using plain and common definition of
the word “use,” the court held that the
tenant’s change in occupancy of the
property did not constitute a discontinuation of the use of the sign; but rather,
the covering of the sign in April 2013
was the starting point to which the sign’s
use could be considered discontinued.
The second issue was whose use, the
owner’s or the tenant’s, matters for
determining whether a use of the sign
has been abandoned. The city drafted its
ordinance in the passive voice, resulting
in ambiguity concerning whose use matters. While the tenant’s use of the sign
may have been abandoned earlier, the
owner’s use of the building—to generate
revenue—remained unchanged. In construing the ambiguity against the city, the
court of appeals held that under the discontinuation provision in the ordinance,
a preexisting nonconforming use can only
be lost where its nonuse is attributable,
at least in part, to the property owner.
In this case, the owner’s use of the sign
continued until the point in time when
it permitted its tenant to cover the sign,
or possibly though the end of its tenant’s
lease because the owner included the
sign in its marketing efforts to attract
new tenants. Either way, the use was not
discontinued for more than one year and
was therefore not abandoned. Meleyco
Partnership No. 2 v. City of West St.
Paul, ___ N.W.2d ___, 2016 WL 281229
(Minn. Ct. App. 2016).
– Michael Kreun
Beisel & Dunlevy PA
statute, and also recalled the preference
for giving its jurisdictional provisions
a broad, practical construction rather
than a narrow, technical one. Taxpayers
have 30 days to appeal a “determination” following a CDP proceeding. The
relevant code section (6330(d)) does not
specify the means by which the IRS shall
notify the taxpayer of such a “determination.” In fact, as the court noted, section
6330(d) does not explicitly require that
the taxpayer be notified at all; it simply
states that there must be a “determination” and permits the taxpayer to appeal
within 30 days after the “determination” has been made. Following the
CDP hearing, the IRS sent petitioner, by
certified mail, a Notice of Determination Concerning Collection Action(s)
denying relief. That notice was mailed
on 4/20/2014. That letter, however, was
mailed to petitioner at an address that
was not his last-known address. The
letter was returned as undeliverable
to the IRS office in Memphis, Tennessee. Someone from the Memphis office
remailed (by regular mail) the 4/20/2014
notice of determination, including the
envelope in which it had originally been
posted, to petitioner at his Maryland
address—the Maryland address was the
address that was petitioner’s “last known
address.” Petitioner received the notice
of determination a few days later and,
on 8/22/2014, mailed to the tax court
a petition seeking review of the notice.
This petition was filed within 30 days
of the date on which petitioner actually
received the notice, and within 30 days
of August 4, 2014, the date on which
the notice was remailed to him. The
petition was not filed within 30 days of
the mis-mailing of the notice. The court,
by analogy to its deficiency jurisdiction,
held that notice in the CDP context is
effective so long as it is actually received
by the taxpayer without prejudicial
delay, that is, generally in time to file a
timely petition in this court. Bongam
v. Comm’r, No. 20104-14L, 2016 WL
552938 (T.C. 2/11/2016).
n Issue of first impression: Arizona
state court judge not “an official
compensated on a fee basis,” so he
has to take his unreimbursed employee
JUDICIAL LAW
deductions like the rest of us—below
n Tax procedure: Noting its “jurisdiction to determine jurisdiction,” tax court the line. Unreimbursed employee
expenses are permitted as deductions,
finds it has jurisdiction. The tax court
denied the commissioner’s motion to dis- but are required to be taken “below the
line” as miscellaneous itemized expenses.
miss in a collection due process (CDP)
case. The commissioner argued that the There is an exception that permits
court lacked jurisdiction because the tax- above-the-line status for unreimbursed
payer/petitioner had not filed in a timely employee expenses for certain taxpayers
fashion. The court disagreed. The court who are “compensated in whole or in
part on a fee basis.” Sec. 62(a)(2)(C)
began by noting some ambiguity in the
TAX
38 Bench&Bar of Minnesota s March 2016
(specifying above-the-line status for “the
deductions allowed by section 162 which
consist of expenses paid or incurred
with respect to services performed by an
official as an employee of a State or a
political subdivision thereof in a position
compensated in whole or in part on a
fee basis”). A highly regarded Arizona
state court judge took the position that
his position fell within the parameters
of Sec. 62(a)(2)(C) and argued that the
unreimbursed expenses he incurred were
deductible above the line.
The court summarized the parties’
positions: “The Commissioner wants
us to interpret ‘compensated on a fee
basis’ to mean something like ‘paid by
a member of the public for a service
rendered by a judge who receives the
fee.’ Judge Jones argues that ‘in a position
compensated in whole or in part on
a fee basis’ means something like ‘a
position funded in whole or in part by
fees paid by members of the public for
services rendered by judges.’ Neither the
Code nor the regulations define what
‘fee basis’ means, and the case law is
similarly stubborn in its silence.” The
court, after a thorough and wide-ranging
analysis that was not unsympathetic to
the judge, held that “[n]o portion of
Judge Jones’s compensation for his role
as a public officer was provided on a fee
basis. Rather, he was an employee of the
State of Arizona and paid a salary for his
work. Thus, his expenses are deductible
as unreimbursed employee expenses
under section 162 and should be reported
as miscellaneous itemized deductions
subject to a 2% floor.” Accuracy-related
penalties were not imposed. Jones v.
Comm’r, No. 27187-12., 2016 WL
537233 (T.C. 2/9/2016).
n Tax procedure: Motion to compel
granted. In an ongoing case, the court
granted Hennepin County’s unopposed
motion to complete discovery responses
for responses to interrogatories and
document requests. Archway Mktg.
Servs. v. Hennepin Co., No. 27-CV-1209900, 2016 WL 324935, at *1 (Minn.
Tax 1/13/2016).
n Tax procedure: Taxpayer afforded
opportunity to file response to commissioner’s summary judgment motion.
Brouillette filed an appeal in January
2015. Rather than file a return and
answer, the commissioner filed a motion
to dismiss for lack of subject matter jurisdiction, which the commissioner later
withdrew. The commissioner then filed
a motion for summary judgment, which
Brouillette did not dispute. The court
ruled that the commissioner’s failure to
www.mnbar.org
Notes&Trends
answer to Brouillette’s original motion
harmed Brouillette’s opportunity to reply
to the motion, and ordered the commissioner to file and serve a return and
answer on Brouillette within 10 days.
The court ordered Brouillette to file and
serve a response to the county’s motion
for summary judgment within 60 days.
Brouillette v. Comm’r of Revenue, No.
8805-R, 2016 WL 324941 (Minn. Tax
1/19/2016).
n Real property tax: Discovery
permitted. Berry & Co. Inc. challenged
the 2012 real estate assessment on
property it owns in Wayzata, contesting
the value of the property and its highest
and best use. Berry served subpoenas
on Wayzata’s city manager, the former
city planner, and the former commercial
assessor (who is now the current
residential assessor). The City of Wayzata
moved to intervene in the proceedings to
make a motion to quash the subpoenas
and to seek a protective order for any
further discovery from the city and its
current or former employees. The city
argued the subpoenas were an attempt
to harass the city and its employees. The
court ruled for Berry & Co., permitting
depositions of the three city employees
because the depositions fall within the
scope and limits of discovery because
they were individuals having “‘knowledge
or information relating to the subject
matter of this lawsuit or the allegations,
claims or defenses asserted.’” The court
denied both of the city’s motions. Berry
& Co. Inc. v. Hennepin Co., No. 27-CV13-07304, 2016 WL 379249 (Minn. Tax
1/20/2016).
LOOKING AHEAD
n Four candidates, four tax plans:
Snapshots of the currently leading
presidential candidates’ tax plans.
Hillary Clinton: Hillary Clinton
proposes to provide tax relief to working
families and small businesses by increasing the minimum wage and cutting taxes
for businesses that share profits with
their employees. She plans to close corporate tax loopholes, which she argues
will encourage investment in the U.S.
Her proposed New College Compact
will extend a tax cut of up to $2,500 per
student to help ease the costs of college.
Clinton also supports closing tax loopholes and expenditures for the wealthy.
Bernie Sanders: Sanders proposes
to close tax loopholes and eliminate
breaks for the wealthiest Americans.
Sanders plans to modify the estate tax
for individuals with estates valued at
over $3.5 million and couples over $7
million. Through his Corporate Tax
www.mnbar.org
Dodging Prevention Act, Sanders hopes
to eliminate tax havens, which he
considers legalized tax fraud.
Donald Trump: Simplicity is Donald
Trump’s goal. He plans to limit the tax
code to four brackets, with marginal
rates of 0%, 10%, 20% and 25%. A
single person earning less than $25,000
or a couple earning less than $50,000
will not pay an income tax. All business
taxes will be capped at 15%. Trump
will eliminate the estate tax completely.
He also claims that he will reduce the
loopholes providing tax breaks for the
very rich.
Ted Cruz: Cruz proposes the “Cruz
Simple Flat Tax,” which he suggests
will result in all income groups seeing
a double-digit percentage increase in
after-tax income. Personal income tax
will be reduced to 10% for every bracket.
– Morgan Holcomb
– Jessica Voigt
Mitchell Hamline School of Law
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JUDICIAL LAW
Minutes from USPTO & Washington, DC
n Statute of limitations: Whistleblower
Act. Plaintiff employee alleges that
she made reports to her supervisors
regarding activities she believed to
be unethical or illegal shortly before
her full-time position was eliminated.
Plaintiff filed suit more than two
years after she was notified of her
termination. The trial court dismissed
plaintiff’s claim, holding that plaintiff’s
claim was barred by a two-year statute
of limitations. The court of appeals
reversed and remanded.
The Minnesota Supreme Court
affirmed the decision of the court of
appeals, holding that a six-year statute of limitations applied to plaintiff’s
cause of action. The court reasoned
that the two-year statute of limitations found in Minn. Stat. §541.07(1),
which references “other tort[s] resulting in personal injury,” applies only to
actions that existed at common law.
Because Minnesota has recognized a
common law cause of action only for
discharge arising out of an employee’s
refusal to violate the law—rather than
simple reporting of illegal conduct—the
six-year statute of limitations found in
Minn. Stat. §541.05, subd. 1(2) governed plaintiff’s claim. Ford v. Minneapolis Public Schools, No. A13-1072
(Minn. 1/20/2016). http://www.mncourts.
gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/
OPA131072-012016.pdf
– Jeff Mulder
Bassford Remele, A Professional Association
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March 2016 s Bench&Bar of Minnesota 39
People Practice
People&Practice
n Cory P. Whalen
was inducted
as a member of
the Minnesota
Chapter of the
American Board
of Trial Advocates (ABOTA).
ABOTA is a naCory P. Whalen
tional organization
comprising those attorneys who have
achieved the most elite status among
trial attorneys. Membership is offered
by invitation only and is awarded to a
select group of uniquely experienced
attorneys who have extensive and verifiable jury trial experience. Whalen is a
partner and shareholder at the law firm
of SiebenCarey. He practices in all areas
of personal injury litigation.
n Kathleen Loucks and Mike Moline
have become shareholders of Lommen
Abdo, PA. Loucks is a litigator who
focuses on business and construction
defect litigation, as well as medical
malpractice and insurance coverage
disputes. Moline concentrates his trial
practice on construction defects, commercial litigation, and first-party insurance coverage claims.
president of the Minnesota Board of
Pharmacy. He has been a member of the
Board since 2011.
n Darin L. Mix and Christopher Zipko
joined McCullough & Associates, PA as
trial attorneys. Mix focuses his practice
in the areas of personal injury, estate
planning, and family law matters. Zipko
focuses his practice in the area of criminal defense, personal injury, and family
law matters.
n Elizabeth
Sorenson Brotten
was elected as a
firm shareholder at
Lind, Jensen, Sullivan & Peterson,
PA. Sorenson
Brotten is a civil
litigator who focuses her practice Elizabeth Sorenson Brotten
on defending clients in tort, product liability, and general liability cases in Minnesota, North Dakota, South Dakota,
and Wisconsin.
n Monica Detert, Jazz Hampton,
and Umut Ozturk joined Larson •
King, LLP. Detert is a 2015 graduate
of William Mitchell College of Law.
n Andrew Dosdall and Jeremy Warring She will focus her practice on employjoined SeilerSchindelSegal PLLC. Dosment and business litigation. Hampton
dall and Warring both graduated from
graduated from the University of St.
Thomas School of Law in 2015. He will
William Mitchell College of Law, and
focus his practice on business, products
joined forces in 2012, creating Warring
Dosdall, PA. Now they focus their pracand professional liability, and financial
tices in the areas of commercial litigation, services litigation. Born in Istanbul and
business transactions, and real estate.
fluent in Turkish, Umut immigrated to
the United States 25 years ago. He will
n Stuart T. Williams, business and
focus his practice on business litigation,
environmental litigation attorney
immigration law, professional liability,
at Henson & Efron, was re-elected
and financial services litigation.
40 Bench&Bar of Minnesota s March 2016
In Memoriam
Richard W. Brust passed away on
January 3, 2016 at the age of 93. He
was VP of the corporate tax department at 3M Company for 40 years.
Thomas H. Jensen passed away at
the age of 69. He graduated from the
University of Minnesota Law School in
1973 and practiced law for many years.
Thomas W. Geng of Shorewood
passed unexpectedly on January 30,
2016 at age 57. Post-graduation,
he moved to Washington D.C.
and became Chief of Staff for
Congressman James Scheuer, and then
Special Assistant to the Chairman of
the House Subcommittee on Natural
Resources. He returned to Minnesota
to earn his JD from the U of M Law
School in 1991.
John Bertram Press, age 85, of St.
Louis Park, died on January 24, 2016.
He graduated from the University of
Minnesota Law School in 1956. Bert
practiced his entire 43 year career in
Minneapolis and handled a wide variety of legal matters, from criminal to
probate, as well as transactional work.
Bert was founder and president of the
Elliot Park Business and Professional
Association, now known as the East
Downtown Council, and president of
the Community Housing Corporation.
Jerry Paul Probst, age 63 of
Bloomington, MN, passed away suddenly on February 6, 2016. He was a
graduate of the University of Minnesota and Hamline Law School.
www.mnbar.org
People&Practice
n James P. Rieke
was named as
a partner at
Patterson Thuente
IP. Rieke is an
experienced
intellectual
property attorney
with a practice
James P. Rieke
focusing on patent
preparation, prosecution, and strategic
IP portfolio management.
n Monica Clark, a partner in the
Minneapolis office of Dorsey & Whitney
LLP, has been named a co-chair of the
bankruptcy & restructuring practice
group. Clark represents financial institutions, creditors, unsecured creditors’
committees, and equipment lessors in
local and national bankruptcy cases.
n Gov. Mark
Dayton appointed
Keiko L. Sugisaka
as an at-large memn Shannon Cooper joined Roe Law
ber of the ComGroup as an associate focusing on
mission on Judicial
employment counseling and litigation.
Selection. Sugisaka
Previously, Cooper worked as an
will be replacing
associate in civil and business litigation. Mary Al Balber for
Keiko L. Sugisaka
a term expiring on
n Thrivent Financial named Tina Smith January 7, 2019. Sugisaka is a litigation
as vice president, deputy general counsel partner and chair of the tort & product
for the organization. Smith was previliability practice group at Maslon LLP.
ously vice president, managing counsel.
Smith leads and coordinates a team of
n Maslon LLP announced the eleclegal and compliance professionals who
tion of its 2016 governance committee,
support Thrivent Financial’s asset man- which manages the firm. Mike
agement function.
McCarthy has served on the commit-
tee since 2014 and was elected to serve
as chair in 2016. He is joined by Paul
Chestovich, member since 2015, and
Haley Schaffer, a newly elected member of the firm’s governance committee.
n Marilyn J. Michales Family Law announced that Kirby MacLean joined
the firm as an associate attorney and
Bethany Thompson joined the firm as
a law clerk. MacLean is an alumnus of
Mitchell Hamline. Thompson currently
attends Mitchell Hamline.
n Janine M. Loetscher, Jeffrey
R. Mulder, and Peter L. Gregory
have been elected as shareholders of
Bassford Remele. Loetscher focuses on
insurance coverage, construction law,
prod­ucts liability, personal injury, and
appeals. Mulder practices in the areas
of commercial litiga­tion, insurance
coverage, profession­al liability, and
intellectual property. Gregory is a
civil litigator who focuses his practice
on professional liability defense and
commercial litigation.
Blackwell Burke P.A.
welcomes its new attorneys.
Deborah E. Lewis
Micah Mitchell Hines
Steve Ellison
Ms. Lewis is an experienced trial attorney
who defends corporations and health care
providers in product liability actions which
includes pharmaceutical and medical device
manufacturers, automobile/component part
manufacturers, retailers and physicians. She
is also a former registered nurse. Ms. Lewis
graduated from the University of Texas at
Austin and joins Blackwell Burke P.A. as a
Partner.
Ms. Hines recently returned to Blackwell
Burke P.A. as Special Counsel. Previous
to that, she served as general counsel and
assistant chief of staff to Minnesota Governor
Mark Dayton and Lieutenant Governor
Yvonne Prettner Solon. Hines also served as
chief legal advisor to the Governor, Lieutenant
Governor and approximately thirty-five office
staff on numerous diverse subjects and legal
matters across the twenty-four executive
branch agencies. She graduated a Dean’s
Scholar from the University of Michigan Law
School.
Mr. Ellison is an experienced litigator
practicing in the areas of class action
defense, drug and medical device defense,
toxic torts, and other complex litigation. He
has substantial experience in various areas,
including electronic discovery and alternative
dispute resolution. Mr. Ellison is a Qualified
Neutral under Minnesota R. Gen. Prac. 114.
He graduated magna cum laude, Order of the
Coif, and Dean’s List from the University of
Minnesota Law School and joins Blackwell
Burke P.A. as Special Counsel.
www.blackwellburke.com
www.mnbar.org
March 2016 s Bench&Bar of Minnesota 41
Opportunity Market
Attorney Wanted
ATTORNEY – Christensen & Laue, PA
in Edina, Minnesota seeks an associate
attorney with at least four years of experience to practice real estate, estate
planning and commercial law in a collegial setting. This is a long term position
with shareholder potential for the right
candidate. Must have a demonstrated
ability to generate clients. Send resume
and cover letter to [email protected]
or 5101 Vernon Avenue South, Suite
400. Edina, MN 55436.
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ASSOCIATE Attorney. Siegel Brill, PA
is looking for an associate attorney
with two to three years of experience
to support its commercial litigation and
personal injury practices; significant
litigation experience preferred. Candidates must possess strong academic
credentials and writing skills. We are
looking for dynamic candidates who can
support our existing litigation practices
and who are interested in developing a
practice of his or her own. Submit your
cover letter and resume to: [email protected]
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OFFICE of the Solicitor General. The Office of the Solicitor General within the
Minnesota Attorney General’s Office
is accepting resumes from highly capable civil litigation attorneys who are
interested in representing the government and people of Minnesota in high
profile legal matters in all state and
federal courts. Attorneys in the Solicitor
General’s Office appear on behalf of the
State of Minnesota in district and appellate courts in some of the most important, challenging cases facing the state
and its citizens. Lawyers in the office
defend the constitutionality of state legislation, represent the state in appellate
courts, and represent the public in other
important matters, including statutory
disputes and defense and prosecution
of lawsuits. Requirements: Our selection process is competitive. Applicants
should have successful legal practice
experience, impeccable research, writ42 Bench&Bar of Minnesota s March 2016
ing, and communication skills, outstanding academic credentials, good work
ethic, character and judgment, and a
strong professional drive. Service with
the office may qualify applicants to have
part of their student loans forgiven under
the federal student loan forgiveness program that applies to state government
employees. (For more information, visit
www.studentaid.ed.gov/sa/repay-loans/
forgiveness-cancellation/ public-service.)
Applications: Please submit a cover letter and resume that includes relevant
experience and academic credentials to:
Office of the Minnesota Attorney General, Attention: June Walsh, 900 Bremer
Tower, 445 Minnesota Street, St. Paul,
MN 55101, [email protected] The
Office of the Attorney General is an equal
opportunity employer. If you need reasonable accommodation for a disability,
please call June Walsh at (651) 757-1199
or (651) 296-1410 (TTY).
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CIVIL Enforcement Attorney. The Minnesota Attorney General is accepting resumes from highly capable, experienced
civil litigation attorneys who desire to
represent the government and people of
Minnesota in enforcing state consumer
protection laws. Attorneys defend the
rights of the public from unlawful activity that violates state laws. Attorneys appear in court to enjoin unlawful activity,
hold wrongdoers accountable, and vindicate the rights of the public by obtaining
restitution for victims and other equitable
relief. The work of our attorneys makes
a difference in the lives of people who
often cannot afford legal representation
and who cannot otherwise obtain legal
redress. Attorneys gain valuable experience litigating their own cases from start
to finish, including through trial and appeals. Service with the office may qualify
applicants to have part of their student
loans forgiven under the federal student
loan forgiveness program that applies
to state government employees. (For
more information, visit www.studentaid.
ed.gov/sa/repay-loans/forgiveness-cancellation/ public-service.) Requirements:
Applicants should have successful relevant practice experience, outstanding
writing and communication skills, excel-
lent analytical skills and judgment, and
strong professionalism. You may submit
a cover letter and resume to: Office of
the Minnesota Attorney General, Attention: June Walsh, 900 Bremer Tower,
445 Minnesota Street, St. Paul, MN
55101, [email protected] The
Office of the Attorney General is an
equal opportunity employer. If you need
reasonable accommodation for a disability, please call June Walsh at (651)
757-1199 or (651) 296-1410 (TTY).
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MEDICAID Fraud Attorney. The Minnesota Attorney General’s Office is accepting resumes from attorneys interested
in joining the Medicaid Fraud Unit of the
office and prosecuting health care providers that defraud the state medical assistance program. This position directly
contributes to the quality of health care
in Minnesota and the protection of the
public. Medicaid fraud harms taxpayers
and diverts health care services away
from needs of vulnerable patients.
Requirements: The selection process
for this position is highly competitive.
Lawyers are responsible for all phases
of both criminal and civil litigation, including overseeing/managing investigations, preparing and filing pleadings
and briefs, appearing at court hearings
and trials, and handling appeals. Applicants should have relevant civil or
criminal litigation trial experience, solid
academic credentials, and good judgment, research, and analytical abilities.
Your service with the office may qualify
RATES:
MSBA members: $1.50 per word.
Nonmembers: $2.25 per word.
Charge for box number: $20.00.
Minimum charge of $30.00 for all ads.
“Bench & Bar affirms the concept
of equal employ­ment opportu­nity.
Accordingly, we will not publish
advertisements that categorize
applicants on the basis of race, religion,
sex, age, or other illegal classification.”
Place an ad:
Ads should be submitted online at:
www.mnbenchbar.com. For more
information call: (612) 278-6311
www.mnbar.org
OpportunityMarket
you to have part of your college and/or
law school student loans forgiven under
a federal student loan forgiveness program that applies to state government
employees. (For more information,
visit www.studentaid.ed.gov/sa/repayloans/forgiveness-cancellation/publicservice.) Applications: Attorneys may
express interest by submitting a cover
letter and resume that includes relevant
experience and academic credentials
to: Office of the Minnesota Attorney
General, Attention: June Walsh, 900
Bremer Tower, 445 Minnesota Street,
St. Paul, MN 55101, [email protected]
mn.us. The Minnesota Attorney General
is an equal opportunity employer. If you
need reasonable accommodation for
a disability, please call June Walsh at
(651) 757-1199 or (651) 296-1410 (TTY),
or 800-366-4812 (TTY toll free) to arrange an accommodation.
ATTORNEY Opportunity. Weld Riley, SC,
a fast growing, 33-lawyer, AV-rated firm
with offices in Eau Claire, Black River
Falls and Menomonie, Wisconsin, just
a short distance from the Twin Cities on
I-94, is seeking an experienced attorney
to join our litigation section representing
insurance companies, businesses and individuals. A minimum of three years’ litigation experience is desired. Besides the
ability to work in a great part of the State,
Weld Riley, SC, offers excellent support,
facilities, benefits, and opportunities for
growth. Interested applicants should
send a resume, including references, to:
Attorney Christine A. Gimber, Managing
Partner; Weld Riley, SC; P.O. Box 1030;
Eau Claire, WI 54702-1030; email: [email protected] All inquiries and responses will be confidential.
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ATTORNEY Wanted – Oakdale, MN.
Borgelt, Powell, Peterson & Frauen is
ASSOCIATE. Rinke Noonan, a growing looking for an insurance defense attorney
firm with 26 attorneys in St. Cloud, MN, with one to five years of litigation expeseeks an associate to practice in the rience. Licensed in MN and WI a plus.
areas of environmental, natural resourc- Send resume and salary requirements
es, and agricultural law. This position’s by email to [email protected]
responsibilities include advising clients
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on environmental regulatory compliance, particularly in the areas of water ESTATE PLANNING / Elder Law Attorlaw and wetland conservation compli- ney. Henningson & Snoxell, Ltd. is growance; representing clients in federal and ing! We are looking for an experienced
state court and before federal and state Estate Planning/Elder Law Attorney
administrative agencies in a broad range with a portable book of business and
of environmental, agricultural, property, awesome referral network. Founded in
and land use matters; advising and guid- 1981 on the principles of honesty and
ing municipal and local government cli- integrity, our attorneys are dedicated to
ents, particularly watershed districts understanding the needs of our clients
and public drainage authorities; and ne- and protecting their rights. Be a part of
gotiating and drafting transactional doc- our experienced team of compassionate
uments related to a variety of environ- attorneys, educating and guiding clients
mental and agricultural-related matters. and families in all aspects of Estate PlanThe successful applicant will have the ning, Probate, etc. Submit your cover letsupport of experienced attorneys and ter, resume and law school transcript to:
paralegals and be given the opportunity [email protected]
to grow niche practice areas with long
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term clients. Rinke Noonan seeks associates with the drive to develop their ATTORNEY – Litigation. At Henningson
skills, create a client base, and become & Snoxell, Ltd. we take a common-sense
active participants and owners in the approach to the practice of law with our
firm. The successful applicant will have experienced litigation team. If you are
significant immediate and meaning- an experienced litigation attorney, conful client contact. Applicants with 3 to sider joining our team. We are looking
5 years of legal experience, as well as for someone passionate about the law,
other real world experience, preferred. who has at least five years civil litigation
Interested persons should provide a re- experience, has portable business and a
sume, writing samples and law school solid referral network. Must have State
transcript to: Rinke Noonan, Attention and Federal court experience, great comAnn Entenmann, P.O. Box 1497, St. munication skills and top quality writing
Cloud, MN 56302. For more informa- skills. Submit your cover letter, resume
tion, please review the firm’s website at and law school transcript to: [email protected]
www.rinkenoonan.com.
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www.mnbar.org
BUSINESS / Employment Law Attorney.
Experienced business law attorney is
sought by Henningson & Snoxell, Ltd.
We are expanding and need an attorney
passionate about providing advice and
counsel clients on day-to-day business
and corporate matters. High interest in
employment law issues, such as affirmative action, compliance, workforce reductions, FMLA, ADA, and HIPAA issues
is desired. When you work at Henningson & Snoxell, you will find a close-knit
team of experienced legal professionals,
focused on cost-effective and efficient
legal representation. Submit your cover
letter, resume and law school transcript
to: [email protected]
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CADEM LAW Group, PLLC, is seeking
to add an attorney to its dynamic litigation practice in its Fergus Falls, Minnesota location. A self-starting, results-oriented and client-focused personality is
a must. Applicants of all experience levels will be considered. Inquiries, cover
letters, and resumes should be directed
to [email protected]
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DOWNTOWN Minneapolis boutique
trial firm seeks Associate with one to
three years of experience for all aspects
of litigation practice. This position
demands excellent research and writing
skills. Sound judgment, strong work
ethic and attention to detail are also
required. Reply to: Bench & Bar Box
292, c/o MSBA, 600 Nicollet Mall, #380,
Minneapolis, MN 55402.
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INNOVATIVE, community oriented
law firm looking to improve the lives
of clients and legal professionals seeks
to hire an attorney with at least three
years’ experience to join our team. We
are looking for an attorney to grow with
us at our expanding office locations
in the areas of civil litigation, family
law, probate/estate planning, criminal
defense, or real estate. To obtain the
link to the application, send an email to
[email protected]
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SEEKING an associate attorney with a
minimum of five years of experience
in the areas of family law and criminal
defense for offices in Cambridge,
Forest Lake and Blaine areas. Must
be self-motivated with significant
courtroom experience. Email resume
to: [email protected]
March 2016 s Bench&Bar of Minnesota 43
OpportunityMarket
LEVANDER, Gillen & Miller, PA, a
13-member AV-rated firm in South St.
Paul, seeks a Minnesota-licensed associate attorney with zero to three years
of experience for a position primarily
in criminal prosecution combined with
municipal and other civil work. Strong
academic credentials and writing skills
required. References requested. Submit resume and cover letter to: Tam
Casey, 633 South Concord Street, Suite
400, South St. Paul MN 55075 or email:
[email protected]
experience, skills, or interest in medical
malpractice cases are preferred. The salary for the position depends on experience. Quinlivan & Hughes, PA offers an
excellent benefits package in addition
to salary. Interested candidates should
submit a letter of interest, resume, writing sample, list of references and salary expectations to Sarah Kosel, Human
Resources, Quinlivan & Hughes, PA,
[email protected] or PO Box 1008,
St. Cloud, MN 56302. This position will
be opened until filled.
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MCCOLLUM Crowley, with offices in
Minnesota, Wisconsin, and Colorado,
is seeking a full-time civil litigation attorney with trial experience. Candidate
should possess strong client service
and communication skills. Portable
business preferred. McCollum Crowley
offers a competitive salary, incentives,
and benefits. Email resume and cover
letter to Vanessa Kahn, Firm Administrator, at [email protected]
exchange offers. Serving in a mid-level
associate or lead associate capacity
with respect to merger and acquisition
transactions. Serving in a mid-level associate or lead associate capacity with
respect to takeover defense and activist
response matters, including proxy contests. Serving in a mid-level associate
or lead associate capacity with respect
to control-position and minority position
investments by private equity fund clients. To apply: please send cover letter,
resume and unofficial law school transcript by email to: Pa Houa Xiong, Recruiting & Diversity Coordinator, Stinson
Leonard Street, 150 South Fifth Street
Suite 2300, Minneapolis, MN 55402,
[email protected] Stinson Leonard Street is an EEO employer. We encourage qualified minority, female, veteran and disabled candidates to apply
to be considered for open positions. We
offer a competitive compensation and
benefits package. We conduct criminal
background checks of all individuals offered employment.
SENIOR Litigation Associate. Plaintiffs’
law firm seeks a senior associate for
growing litigation practice focusing on
construction defect claims and class
actions. If you’re passionate about consumer protection like we are, come join
our team! Applicants should be able
to manage a caseload, have strong research and writing skills, excellent communication skills, and deposition and trial
experience. A creative, entrepreneurial
spirit is also highly sought. Salary comsssss
mensurate with experience. Excellent
Office Space
MESSERLI & Kramer PA, a top 25 MN insurance and retirement benefits oflaw firm, has an associate attorney fered. Submit cover letter, resume, writopportunity in our business litigation ing sample, and salary requirements to: PRIME, Convenient, Eden Prairie. One
to five individual offices. Average size:
group. Successful candidates must have [email protected]
13x14. Floor-to-Ceiling windows. $750
one to four years’ experience with at
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and up. Upgrades: furnished, phone,
least one year of business litigation experience, high academic achievement, STINSON Leonard Street. Associate - support staff cube, file storage, conf.
exceptional research and writing skills, Corporate Finance Division, Minneapolis, room and more. Call Ed or Scott: (952)
excellent verbal and written communica- MN. Description: Stinson Leonard Street 563-3000.
tion skills, and solid organizational skills. LLP (www.stinson.com) is seeking an
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Management of e-discovery a plus. We Associate with three to five years of exseek candidates with a strong interest perience to join the Corporate Finance EXECUTIVE Suites Available. Join the
in developing clients. We are looking for Division in our Minneapolis office. Quali- award winning Collaborative Alliance in
Associate talent to help deliver great fications Required: J.D. and active Minne- Edina, MN and our group of professionservice to our clients and positively influ- sota attorney license required. Qualified als who provide a full range of services
ence our culture. We offer a competitive candidates will have three to five years in the area of family law. 4 Suites availsalary and benefit program. If you would of relevant experience (as described able ranging from 108sf - 124sf. For furlike to join us, please send resume and below), possess excellent academic ther information please contact Sabine
cover letter along with salary expecta- credentials and have strong writing, ana- Shea, [email protected],
tions to: Human Resources, Messerli lytical, organizational, and communica- (612) 203-5946.
& Kramer PA, 1400 Fifth Street Tow- tion skills. Relevant experience includes
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ers, 100 South Fifth Street, Minneapo- significant experience in connection with
lis, MN 55402-4218. Email: bnylund@ securities law compliance and corporate TWO WINDOWED office in downtown
governance matters and capital markets, Minneapolis for a lawyer to join a
messerlikramer.com.
mergers and acquisitions and private modern, professional suite of seasoned
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equity transactions. More specifically, attorneys at the Class A Canadian Pacific
QUINLIVAN & Hughes, PA, an AV-rated candidates should have experience with Plaza. Cubicle space (furnished or
firm with 20 attorneys located in St. the following: Reviewing and providing unfurnished) is also available. Amenities
Cloud, MN is looking for an associate advice with respect to Forms 10-K, 10-Q include receptionist, conference rooms,
attorney to join its insurance defense and 8-K, as well as proxy statements. Pro- a fully equipped workroom, along with
and litigation practice group. The ideal viding advice on corporate governance administrative and paralegal support
candidate should have one to three matters, including review of board com- services as needed. In addition and
years of experience in litigation, excel- mittee charters. Serving in a mid-level all-inclusive for our tenants are video
lent writing and drafting skills, and an associate or lead associate capacity with conferencing rooms and work-out
ability to work in a collaborative team respect to public and/or private offerings facilities. Please contact Melissa at
environment. Candidates with specific of equity and debt securities, including (612) 573-3660 for a showing.
44 Bench&Bar of Minnesota s March 2016
www.mnbar.org
OpportunityMarket
SERVICED Office Space with an Attorney Support Program. Close to MSP
Airport and Mall of America. Contact
Judy Magy the EXPERT with serviced
office space. Hop on a light-rail train or
bus and be in your office in minutes.
One- to three-person offices - base rent
from $280 - $800. Services: personalized telephone answering, copier, fax,
scanning. Witness and Notary services.
Mail sorting and drop off documents,
packages. Support staff and reception
area. Judy Magy (952) 851-9040.
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EXECUTIVE Suites of Minnesota offers
attractively furnished, serviced office
space including receptionist support/
administrative services, meeting rooms,
Internet, flexible terms at prestigious
addresses (IDS Center, Edina, St. Louis
Park, and Oakdale). Call Wayne with
Executive Suites of Minnesota at: (952)
851-5555 or email: [email protected]
com. Visit: www.exsmn.com/attorneys
for our current promotion. Rent one
office, use four metro locations.
1955 UNIVERSITY Avenue – 383 RSF 6000 RSF (3000+ contiguous). Built in
1980 renovated in 2015. Located on the
Green Line one block from the Fairview
street station. Highly visible location on
the corner of University Avenue West &
Prior. Convenient location and easily accessible to highways 94 and 280 center
of the Twin Cities. Property has ample
parking. Please call Christina at: (651)
246-5810.
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OFFICE SUITE & Windowed Offices,
and also virtual attorney space available.
Professional and impressive to clients,
but not expensive. Flexible terms. Free
Parking and wireless internet. Lakes &
Plains Office Building, 842 Raymond
Avenue, St. Paul. Multiple conference
rooms, law library, kitchenette, receptionist and lobby; attorney collaboration
and interaction. Near Key’s Restaurant.
Call Mick at: (651) 647-6250 or email:
[email protected]
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Position Available
FARMERS’ Legal Action Group is
seeking an Executive Director to lead
the organization and ensure continued
excellence in fulfilling its mission.
Founded in 1986, FLAG is a national
nonprofit law center dedicated to
providing legal services and support to
family farmers and their communities
to help keep family farmers on the land.
Job Duties: 1) Strategic development
to achieve mission; 2) Provide
leadership to all fund-raising efforts
and initiatives; 3) Maintain visibility of
the organization; 4) Advocate on behalf
of family farmers, as time permits; 5)
Manage internal operations; and 6)
Work with Board of Directors regarding
organization governance. Visit www.
flaginc.org for details. Qualifications:
Law degree or deep knowledge of
farm law issues; commitment to public
interest/social justice work; excellent
fund-raising, communication, and nonprofit leadership skills.Email cover
letter, resume, and three references to:
[email protected]
OFFICES for Lease - White Bear Lake.
Law firm has three individual offices
VIRTUAL office – Ideal for attorneys available for lease at 4525 Allendale
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who want a professional business Drive. Rent is variable based on office(s)
image but don’t need a full-time office and term. Contact Nichole Lorenz at 651- LITIGATION Paralegal, Minneapolis,
MN. Fox Rothschild LLP has an opening
or who desire access to additional office 426-9980 or [email protected]
in the Minneapolis office for a Litigation
locations. With a virtual office, you have
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Paralegal. The ideal candidate will have
access to the amenities at all four of
our prestigious locations (IDS Center, AFFORDABLE office space in downtown at least five years of experience in all
Edina, St. Louis Park & Oakdale). From Minneapolis. Flexible terms. Steps from aspects of Litigation. Knowledge of Rel$59 monthly. Call Wayne with Executive courthouses. Join other independent at- ativity or other document management
Suites of Minnesota at: (952) 851-5555 torneys in historic building featuring full- software, is preferred. Must be detail
or email: [email protected] For time receptionist, high-speed internet, oriented and possess excellent comour current promotion, visit: www. fax, and conference room. Contact Keith munication, writing, organizational and
Johnson at: (612) 341-2525.
computer skills. Will consider Bachelor’s
exsmn.com/attorneys.
degree, Associate’s degree, or paralegal
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certificate or 10 years of comparable
INDIVIDUAL
offices
for
rent. OFFICE space Minnetonka (Highways work experience. EOE. We are not acProfessional, friendly building by 101 & 7). Office share with two estab- cepting resumes from search firms at
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ProfessionalResponsibility
(Continued from page 13)
Support your colleagues. Take an interest in the health of your colleagues.
Mentor law students, new lawyers, and
not-so-new lawyers on how to take care
of themselves. Learn to recognize problems, express concern, and help lawyers.
Tell your story, show vulnerability, or
share information and offer support.
Host or attend CLE programs to educate
yourself and others on chemical and
mental health. If you are concerned
about a colleague, LCL can coach you
on how to help.
Support a culture of acceptance and
humanity. Encourage discussion of the
negative impact that law study and law
practice have on us as human beings.
Help dispel the fiction of chemical and
mental health concerns as indicative of
character, professionalism, or strength.
Support each other.
Get help. Use the resources available
through LCL23 to get help for yourself
and others. It could save a life. s
Notes
1
ABA’s CoLAP Café Blog has links to
the ABA’s press release, the ABA/
Hazelden study, and links to other
sources: https://abacolap.wordpress.
com/2016/02/08/new-study-from-abaand-hazelden-released-gets-widespreadcoverage/
2
See Jerome M. Organ, David B. Jaffe,
and Katherine M. Bender, “Helping Law Students Get the Help They
Need: An Analysis of Data Regarding
Law Students’ Reluctance to Seek Help
and Policy Recommendations for a Variety of Stakeholders” 84 Bar Examiner
4 (Dec. 2015) at http://www.ncbex.org/
pdfviewer/?file=%2Fassets%2Fmedia_
files%2FBar-Examiner%2Fissues%2FBEDec2015-Abridged.pdf
3
See Andrew H. Benjamin et al: “The
Prevalence of Depression, Alcohol
Abuse, and Cocaine Abuse Among
United States Lawyers,” 13 Int’l J. of
Law & Psych. 233, 240-41 (1990)
(18% problem drinkers vs. 10% in
overall population; 19% of lawyers
depressed vs. 3-9% in overall population). Report of the AALS Special Committee on Problems of Substance Abuse
in the Law Schools, 44 J. Legal Educ.
1, 35-80 (March 1994) (Law students
had high risk of chemical dependency
and 3.3% believed they needed help
to control drug or alcohol use).
4
Findings of the recent lawyer study indicate that more than 20% of lawyers
met criteria for substance use disorder
www.mnbar.org
and the rates of depression and anxiety were 29% and 19% respectively.
Patrick Krill, Ryan Johnson, Linda
Albert “The Prevalence of Substance
Use and Other Mental Health concerns among American Attorneys”
10 Journal of Addiction Medicine 1,
pp. 46-52 (Feb. 2016). Findings of the
recent law student study indicate that
43% of the students reported binge
drinking at least once in the past two
weeks, 22% twice or more times during that period; 17% screened positive for depression; 23% for mild to
moderate anxiety, and 14% for severe
anxiety.
5
As used here, “ethical” refers to a
moral, aspirational philosophy rather
than a reference to the Rules of Professional Conduct, which are minimum standards of conduct.
6
Minnesota Rules of Professional
Conduct, Rule 1.1.
7
Id., Rule 1.16(a)(2).
8
Id. Rule 8.3(a). See ABA Formal
Opinions 03-429 (Obligations with
respect to mentally impaired lawyer in
the firm) and 04-431 (Lawyer’s duty
to report rule violations by another
lawyer who may suffer from disability
or impairment).
9
See ABA Formal Opinions 03-429
(Obligations with respect to mentally impaired lawyer in the firm) and
04-431 (Lawyer’s duty to report rule
violations by another lawyer who may
suffer from disability or impairment).
In Opinion 03-429 the ABA posits
that if a lawyer’s mental impairment
is known to partners in a law firm or
a lawyer having direct supervisory
authority over the impaired lawyer,
steps must be taken that are designed
to give reasonable assurance that such
impairment will not result in breaches
of the Rules of Professional Conduct. In Opinion 03-431, the ABA
states that a lawyer who believes that
another lawyer’s mental condition
materially impairs her ability to represent clients, and who knows that that
lawyer continues to represent clients,
must report that lawyer’s consequent
violation of Rule 1.16(a)(2).
10
Id. Rule 8.3(c).
11
Minnesota’s bar application asks a
series of questions about chemical dependency and mental health, prefaced
with the note “The Board asks these
questions because of its responsibility
to protect the public by determining
the current fitness of an applicant to
practice law. . . The Board strongly
encourages applicants who have mental health and chemical dependency
issues to seek treatment. The Board
views mental health and chemical
dependency treatment as a positive
factor in evaluating an application.”
See page 7 of the Application for
Admission, available at http://www.ble.
state.mn.us/file/Bar%20Application%20
2014%20-%20fill%20in(6).pdf The
questions do not ask about whether
an applicant has sought chemical dependency treatment or mental health
counseling.
12
Id. at 4.37. The essential eligibility
requirements are in Rule 5A of the
Rules for Admission to the Bar, available on the BLE’s website: www.ble.
state.mn.us/rules
13
See Rule 5B(3) of the Rules for
Admission to the Bar for the conduct that the BLE treats as cause for
further inquiry.
14
See Rule 5B(4)(5); preamble on p. 4
of the Application for Admission.
15
See Rule 16 of the Rules for Admission to the Bar.
16
Marty Cole, “Private Probation: Saving a Career? “ LXXII Bench & Bar of
Minnesota IX , 14-15 (Oct. 2015).
17
In re Weyhrich, 339 N.W.2d 274, 279
(Minn. 1983)(psychological problem);
In re Johnson, 322 N.W.2d 616, 618
(Min. 1982) (alcoholism).
18
See In re Mayne, 783 N.W.2d 153
(Minn. 2010); In re Rodriguez, 783
N.W.2d 170 (Minn. 2010); See also
J. Rush, “Disbarment of Impaired
Lawyers: Making the Sanction fit the
Crime” 37 William Mitchell L. Rev. 2,
916 (2011).
19
Ira Zarov and Barbara S. Fishleder,
“New Study Shows Recovery Saves
Dollars” 5 ABA Highlights 2 (April
2002) available at http://www.americanbar.org/content/dam/aba/publishing/
highlights_newsletter/legalservices_colap_highlights_spring02.authcheckdam.
pdf (Lawyers had four times more malpractice and disciplinary complaints
before recovery than after recovery.)
20
2013, 2014, 2015 Annual Reports of
the OLPR/LPRB available at www.
lprb.mncourts.gov. (The number of
new probations and those attributable
to chemical dependency and psychological concerns are reported in the
“Probation” section of each report.)
21
Rule 28 of the Minnesota Rules on
Lawyers Professional Responsibility
governs the transfer to disability
inactive status.
22
Potential threat to bar admission was
the #1 factor discouraging students
from getting help. Organ et al. study
supra n. 2 at 10.
23
Contact LCL at (651) 646-5590. For
more information visit LCL’s website:
www.mnlcl.org
March 2016 s Bench&Bar of Minnesota 47
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