Official Publication of the Minnesota State Bar Association
Volume LXXIII Number VI
July 2016
www.mnbar.org
MSBA President 2016-17
Robin
Wolpert
A Long Road
to the Law
A bar for
everyone, with
no one left out
The unseen work
of the OLPR
2016 Legislative
Session Recap
Succession
Planning:
Rewarding the
Senior Lawyer
INTRODUCING
the communities at
my.mnbar.org
Improving the way you connect, learn and collaborate
with your colleagues at the MSBA.
my.mnbar.org is a brand new online community – exclusively for MSBA members – that will
enhance the way you interact with your bar association colleagues. It will allow you to:
Connect with members across
practice or interest area,
or geographic location.
Learn from the expertise of others
in the community through discussion
posts and social activity.
Collaborate and share your
expertise with members through
document and content sharing.
get
started!
Use your existing
MSBA credentials
to login today.
the communities at
my.mnbar.org
OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION
VOLUME LXXIII NUMBER VI
JULY 2016
www.mnbar.org
4MSBA Blogs
24
2016 Legislative
Session Recap
At the Capitol, a short session and
partisan divisions stymied a lot of
legislation. But most of the MSBA
agenda—including family law reforms
and a series of technical changes to
other laws—was enacted.
By Bryan Lake
Boards and business: Be careful
By Michelle Lore
7President’s Page
A bar for everyone,
with no one left out
By Robin Wolpert
8MSBA in Action
MSBA launches new
online communities
10
12
18
What, Where & When
CLEs & events
Professional Responsibility
he unseen work of the OLPR
T
By Susan Humiston
15
Colleague Corner
MSBA President 2016-17
‘You wear many hats’
Meet Andrew Shaw
Robin Wolpert
A Long Road to the Law
As Robin Wolpert steps up to
lead the Minnesota State Bar
Association this summer, she
won’t be the first woman to have
done so. Nor will she be the first
bar president who has worked
in government or as corporate
counsel. Certainly she won’t
be the first president from the
ranks of Minneapolis law firms,
nor the first who has taught law.
And yet… might she be the first
MSBA president who has done
all those things? Or, at least, the
first to have held those positions
after first excelling in a different
career entirely?
By Amy Lindgren Photos by Stan Waldhauser
Cover Illustration by Broc Larson
www.mnbar.org
29
26
Succession
Planning
Notes & Trends
Landmarks in the law
41
People & Practice
Member announcements
Rewarding the Senior Lawyer
Succession planning works best when
retiring senior lawyers receive the
proper monetary incentives to
transition their clients to other
lawyers in the firm.
By Roy S. Ginsburg
44
48
Opportunity Market
Classified ads
Books & Bytes
Legal publishing
There’s more online at www.mnbenchbar.com
Leave comments, read digital-only articles, and search the article archive.
Jobs and services are posted daily in the opportunity market.
July 2016 s Bench&Bar of Minnesota 3
This article was originally published at MSBA
Small Firm Soapbox. Visit mnbar.org/blogs to
access Soapbox and other MSBA blogs.
MSBABlogs
MSBA
www.mnbar.org/blogs
Boards and business: Be careful
I
n my last couple of posts (visit mnbar.org/blogs and select Small Firm
Soapbox), I have discussed various issues surrounding conflicts of
interest, including the importance of a
good conflicts-checking system and the
risks of agreeing to represent multiple
parties in a matter. I’ll stick with the
conflicts theme for one more post, this
time examining the dangers of getting
involved in a client’s business dealings
and in serving on client boards.
By Michelle Lore
independent counsel on the transaction;
and 3) the client gives informed, written
consent to the essential terms of the
transaction and the lawyer’s role in the
transaction.
However, if the transaction goes bad,
rest assured the lawyer’s involvement
in the deal will be carefully scrutinized,
and the lawyer may end up facing an
ethics or malpractice claim by the client.
Thus, lawyers who dare to enter into
business deals with clients are advised
to follow the letter of the rule carefully.
Business Involvement
Unfortunately, while the requirements
Rule 1.8 of the Minnesota Rules of
of the rule are straightforward and often
Professional Conduct (MPRC) proachievable, many lawyers don’t jump
scribes a broad range of conduct, much
through the necessary hoops, mistakenly
of which deals with attorney self-dealing, believing that their relationships with
and gives fair warning to attorneys that
their clients are resistant to discord.
getting involved with clients in any
The number of malpractice and ethical
capacity other than legal advisor is dan- complaints relating to attorney dealings
gerous. That includes activities such as
with clients shatters this myth.
investing in a client’s business, accepting
stock in lieu of fees or making loans to
Board Service
clients. While not strictly prohibited by
Similarly, lawyers must be wary of
the ethical rules, entering into any kind agreeing to serve as an officer or direcbusiness deal with a client or acquiring
tor on the board of a corporate client.
an ownership interest that is adverse to
While the MRPC do not specifically
a client is never a good idea. Lawyers
prohibit lawyers from simultaneously
who decide that it’s worth the risk must acting as legal counsel and serving as
tread carefully.
officers or directors in corporate clients,
The rule identifies the circumstances several rules, including 1.7, 1.8 and 1.13,
under which a business transaction with do proscribe involvement with clients
a client may be acceptable. Essentially,
that will jeopardize a lawyer’s duties of
such an arrangement may pass muster
loyalty, confidentiality, communication
if 1) the terms of the transaction are
and competency.
fair and reasonable to the client and are
When outside counsel becomes an
fully disclosed in writing; 2) the client is officer or director in a corporate client—
advised in writing to seek the advice of
which is sometimes done just to keep
4 Bench&Bar of Minnesota s July 2016
the client—the attorney’s independence
is diminished. When asked to assume
such a role, attorneys are advised to
provide full disclosure of the conflicts of
interest and potential loss of attorneyclient privilege. The best practice, if the
lawyer agrees to the position, is to confirm in writing that the lawyer is acting
as an officer or director and not as an
attorney providing legal services.
Tread Carefully and
Establish Firm Policies
Involvement with corporate clients in
any capacity other than as legal counsel is risky, and is best avoided. Many
lawsuits are brought against officers and
directors, and attorneys and their law
firms run the risk of not being covered in
most instances.
It’s also a good idea for law firms to
establish policies and procedures with
respect to attorneys serving as officers,
directors or employees of any outside
for-profit or not-for-profit business
enterprise, not just those of a client. At
a minimum, a firm should require the attorney to procure directors’ and officers’
liability insurance, and prohibit the
attorney from providing legal services to
the business enterprise. s
Michelle M. Lore is a claim attorney with Minnesota Lawyers Mutual Insurance Company (MLM).
Prior to joining MLM in 2011, she spent 11 years
as an associate editor for Minnesota Lawyer,
and was in private practice before that, primarily
litigating employment discrimination claims. She is
a member of the 4th District Ethics Committee.
www.mnbar.org
Official publication of the
Minnesota State Bar Association
www.mnbar.org
Editor
Steve Perry
Design & Production
Jennifer Pickles
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Officers
President
Robin M. Wolpert
President-elect
Sonia Miller-Van Oort
Treasurer
Paul W. Godfrey
Secretary
Tom Nelson
Executive Director
Tim Groshens
Publications Committee
Chairperson
Steven P. Aggergaard
Emily K. Cooper
Holly A. Fistler
June Hoidal
Carol K. Lee
Daniel McCabe
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,
www.mnbar.org. Subscription price: $25.00 for members which
is included in dues. Nonmembers $35.00 per year. Some back
issues available at $5.00 each. POSTMASTER: Send address
changes to Bench & Bar, 600 Nicollet Mall, #380, Minneapolis,
MN 55402. Editorial Policy. The opinions expressed in
Bench & Bar are those of the authors and do not necessarily
reflect association policy or editorial concurrence. Publication of
advertisements does not constitute an endorsement. The editors
reserve the right to accept or reject prospective advertisements in
accordance with their editorial judgment.
One of these things is not
like the others:
Don’t be an egghead! Add a photo to your
MN Find a Lawyer directory profile.
www.mnbar.org/edit-profile
www.mnbar.org
July 2016 s Bench&Bar of Minnesota 5
MSBA by the Numbers
Check out these facts and figures from 2015-16
and watch the value of your membership add up!
listservs
mock trial
2,325 members and high
legislation
132
school students participated in
the MSBA Mock Trial program
3,600+
bills monitored or
actively lobbied at
the 2015 Minnesota
State Legislature
members participate in one
or more of the MSBA listservs
publications
91% of Bench & Bar
average savings through
MSBA membership
attendees at Section CLE,
networking and social events
975
= $22.5 million
market value
directory
10,000 average public searches
savings $1,500+
10,000+
hours of pro bono services by
MSBA North Star members
of Minnesota readers rated
the quality of its content
“excellent” or “good.”
CLE
pro bono
112,100
per month for legal representation on
MN Find a Lawyer directory
350 CLE hours > 90 hours of
offered, including...
membership value =
a number that can’t be crunched
on-demand CLE
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certification
MSBA Board Certified
Legal Specialists
Renew your MSBA membership for 2016-17
www.mnbar.org/renew
President’sPage
By Robin M. Wolpert
I
A bar for everyone,
with no one left out
became a lawyer to empower people. And I joined the
Minnesota State Bar Association to empower myself. Before I started my career as a lawyer, I spoke to a number
of business entrepreneurs about how to deliver excellence
and creativity in client service. Their advice? Go after opportunities for accelerated professional growth. Get diversified
practice experience. And “show up” for bar events because
you never know who you will meet who will change your life.
MSBA Enhances and Enriches Legal Careers
I showed up at the state bar as soon as I began practicing
law. MSBA has enhanced my career ever since. I am a legal
strategist, litigator, and appellate lawyer. My practice is often
at the intersection of law and public policy. As an active member of MSBA, I have had the privilege of leading the Appellate Practice Section and being part of our special community
of appellate attorneys and judges. I have had the opportunity
to work on the most important policy issues facing the legal
profession at the state Legislature, the Congress, and the
Minnesota Supreme Court. I am a better attorney and leader
because I have been engaged in the bar. And yes, I have met
people across the state who have shared their stories with me
and enriched my life.
Empowerment Through Diversity and Inclusion
As president of the MSBA, I want the state bar to work for
everyone, with no one left out. This means building the next
generation of lawyers, welcoming them to the profession, and
giving them the tools and connections they need to succeed.
It means reaching out and leveraging the talent of practitioners in greater Minnesota, and addressing the challenges of
rural practice. Finally, it means valuing and including those
who are different from us, in everything we do. The diversity
of the bar encompasses race, age, gender, ethnicity, disabilities, religion, sexual orientation, socioeconomic status, veteran status, and geography (among other things). At MSBA,
we are focusing on a change in mindset. It is a mindset that
we acquire from personally experiencing, and therefore intuitively knowing, that we are better lawyers when we value and
Diversity
As a former college professor,
I know from experience that
valuing and including diverse perspectives and experiences engages
students and fosters growth and critical thinking. As former in-house
compliance counsel at 3M, I know from experience that valuing and
including diverse perspectives and experiences enhances innovation
and competitiveness in the global marketplace. What are your
experiences with diversity and inclusion? How have diversity and
inclusion enhanced your practice of law and the competitiveness
of your organization? Watch for our monthly articles on diversity
and inclusion this bar year. Our first author will be Hennepin County
Attorney Mike Freeman.
www.mnbar.org
include those who are different from us. When we maximize
the best talent from a variety of backgrounds, we make better
business decisions and have a competitive advantage. When
we “live” diversity and inclusion, we are more empowered to
serve our clients. We naturally elevate our practice of law.
Supporting Lawyers with Chemical Dependency
and Mental Health Issues
MSBA’s diversity and inclusion work extends to those
disabled by alcohol use problems and mental illness. This
year, the ABA and the Hazelden Betty Ford Foundation
publicized the results of their historic effort to understand the
impact of behavioral health problems on the legal community.
The data indicates that attorneys experience problematic
drinking that is hazardous, harmful, and consistent with
alcohol use disorders at a higher rate than other professional
populations. More specifically, 20.6 percent of lawyers
engaged in hazardous, harmful, and potentially alcoholdependent drinking; lawyers 30 years of age or younger were
significantly more likely to engage in hazardous drinking than
older lawyers; and 43.7 percent reported that problematic
use of alcohol started within the first 15 years following law
school. The study also indicated that levels of depression
(28 percent), anxiety (19 percent), and stress (23 percent)
among attorneys are significant. Unfortunately, the barriers to
obtaining help are also significant. Attorneys have concerns
about privacy and confidentiality
and fear that they will be stigmatized
if others find out.
If you know or work with someone
suffering from alcoholism or mental
illness, you understand the toll it takes
on individual lives and those who care
for them. On behalf of the MSBA, I
ask that you extend your compassion
and empathy to our colleagues and
direct them to Lawyers Concerned
ROBIN M. WOLPERT
For Lawyers (651) 646-5590 so they
is a legal strategist,
can get the confidential assistance they
litigator, and appellate
need. Please see www.mnlcl.org for the
lawyer at Sapientia
full range of services LCL provides.
Law Group, where she
In Conclusion…
This year the MSBA is tackling
a number of issues that will affect
the future of the practice of law.
These include changes in the legal
services and legal education markets,
access to justice, juvenile justice,
and judicial elections. We hope that
you will contribute your experience
and perspective to our work. We are
empowered by your voice. And your
collective, diverse voices help us
empower you. s
focuses her practice
on complex business
litigation, data privacy,
constitutional law, and
political law compliance. Robin represents
clients in litigation
involving private parties or the government,
parallel civil and criminal proceedings, civil
and criminal appeals,
and investigations.
July 2016 s Bench&Bar of Minnesota 7
MSBAinAction
MSBA Action
Important:
Vote in primary!
D
ue to a rare set of electoral circumstances, the race
for Minnesota Supreme Court is the only statewide
contest on the Minnesota ballot in 2016. Three candidates have filed for this seat. Though there will be primary
contests in some local and Congressional races around Minnesota, the absence of any high-profile state or federal races
from the ballot suggests that statewide turnout for the August
9 Primary Election may be very low. And a low-turnout scenario increases the risk that the race for Supreme Court could
have aberrant results. If MSBA members vote in the primary—and each of them
secures commitments from 10 more people to vote—then
collectively these voters could help to ensure that qualified
candidates reach the General Election ballot. You can request
an absentee ballot now by visiting the Minnesota Secretary of
State’s “Request an Absentee Ballot” page at bit.ly/1sm4scW
Please take a moment today to fill out the application. Absentee ballots must be received by August 8. Absentee ballots
require a witness, who can be either a registered Minnesota
voter or a notary. Your witness must sign the signature envelope and list their address. Notaries should write their name
and title, sign the signature envelope, and affix their notary
stamp. You can also vote early at your county election office
through August 8. If you are not registered, bring proof of
residence.
All candidates for the contested Supreme Court race were
asked to submit information to the MSBA to help educate
our members and the public about their background and
qualifications. You can find this information at www.mnjudges.
org. If you would like to volunteer to assist in our Get Out
the Vote effort, please contact MSBA staff Nancy Mischel at
[email protected] or (612) 278-6331.
MSBA Assembly action
A
t its June 24 meeting, the Assembly took the
following actions:
n Adopted a proposal to expand the pool of members eligible
to participate in the MSBA’s judicial poll for statewide
contested races by allowing any individual attorney member
of the MSBA to opt in, and any section to opt in.
n Adopted a proposal that the MSBA form an independent
expenditure fund. Creating a fund will allow the association
to promote an endorsed judicial candidate to the general
public without running afoul of campaign finance laws. If it
chooses to do so, the MSBA Council can endorse a judicial
candidate who receives at least 75 percent of the vote in the
MSBA’s judicial poll.
n Adopted a proposal to amend the Minnesota Rules of Civil
Procedure to require that at least 50 percent of unclaimed,
undistributed residual funds in state court class actions be
donated to the Minnesota Legal Aid Foundation Fund, and
to update many of the Rules to conform to the Federal Rules
of Civil Procedure.
8 Bench&Bar of Minnesota s July 2016
T
MSBA launches new
online communities
he MSBA has launched new ways for members to
engage with each other online. The communities
at my.mnbar.org now offer members opportunities
for online discussions, announcements, and documentsharing. my.mnbar.org will also host the documents and
resources of the MSBA’s popular practicelaw program.
Some new online communities are already underway, such
as a new community for members who had been using the
solo/small listserv. Others, such as a community for each
section of the MSBA, will be rolled out on a gradual basis.
Why has the MSBA moved to this platform? The technology being used to host the MSBA listservs is nearing
the end of its serviceable life and needs replacement. By
now you should have received messages from any group of
which you are a member as well as a message from a new
listserv email address. Be sure to whitelist this address.
If you haven’t been receiving messages like you used to,
check your junk/spam filter. If you have questions, contact
your section liaison or group administrator.
The new discussion forums operate like the old ones –
via email – but they also allow members to do several
other things:
n Choose to receive a daily or weekly digest of email
communications so your inboxes are not filled with
single-message emails;
n share documents in a community library;
n make announcements pertinent to your
community;
n Search for documents in practicelaw or elsewhere
on the site using a keyword search.
With the move to Casemaker on July 1, the MSBA
also upgraded its Court Opinions by Email service. The
delivery mechanism is Casemaker Digest. In addition to
an improved interface, this new service allows members
greater functionality and customization. Members can
add additional filtering to reduce the volume of messages
received, or even add additional courts, cases, judges, or
keywords to their service. Again, be sure you have the
Casemaker Digest email whitelisted to ensure you continue
to receive your updates.
T
Stingley honored
he Labor and Employment Law Section proudly
awarded Sue Stingley its Leonard Lindquist Award
at its annual dinner on June 15, 2016. The award is
given annually to a practicing or recently retired employment or labor attorney for contributions and service to the
legal community and the community at large. Stingley, a
well-known and highly respected litigator and mediator
in the field of labor and employment law, came to prominence as a special master in the Rajender v. University of
Minnesota case, in which women faculty members sued
the University of Minnesota for gender discrimination.
She worked closely with the other special master, Leonard
Lindquist, to successfully resolve some 450 individual Title
VII cases that arose from the Rajender consent decree. Mr.
Lindquist’s widow—and Sue’s friend—Bernie Lindquist
was on hand to share in the celebration.
www.mnbar.org
SAVE
TIME
AND $$
announcing
practicelaw 2.0
practicelaw is the free, members only
practice resource you rely on. Now offered on
a new community platform at mnbar.org
all documents have
been peer reviewed
OVER 1,000
Minnesota-specific
forms in these
practice areas:
Adoption
Appellate Practice
Business Law
enhanced keyword
search within
documents
Civil Litigation
Conservatorship
downloadable books
for portable access to:
■ Minnesota Judges Courtroom Preferences (by District)
■ Minnesota Legal Ethics (Bill Wernz)
■ Minnesota Land Use Law (Karen Marty)
■ IOLTA accounting guides
✓ a wide variety of practice content:
■ orders, notices, answers,
affidavits, editable conveyancing
forms, letters and checklists
■ resources and guidance from
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Criminal Law
Family Law
Guardianship
Labor and Employment
Practice Management
Probate
access practicelaw at :
mnbar.org
Real Property
What,Where
What,Where&When
When
Headshot Day
October 3
Get a free headshot
to add to your
MSBA profile.
www.mnbar.org/headshots
ADR
Save the Date
s Best Practices for
Advocates in Arbitrations
Minneapolis
October 4, 2016
s MSBA Tech
Conference
July 21 • 2.0 Credits
MCLE
TECHstar Conference
Lakeville, MN
Bankrptcy
On DEMAND CLE
Over 50 CLE courses are available
for you to watch on demand
as your schedule permits.
www.mnbar.org/on-demand
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
Continuing Legal Education
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].
s New Law & Significant
Issues in Bankruptcy
Minneapolis
Earn a full day of CLE credit: Learn how MSBA tech tools
can help you save time and build your practice.
Learn more at: www.mnbar.org/TECHstar
July 26 • 3.0 Credits
MCLE
Business Law
s Ethical Considerations
for Attorneys Serving on
Nonprofit Boards
Minneapolis
Sep 7 • 1.0 Credit
MSBA
s Conducting Effective
Internal Investigations
Minneapolis
Aug 3 • 6.25 Credits
MCLE
Casemaker
s MN Casemaker:
A Complete Guide
Webinar
July 19
MSBA
Civil Litigation
s Understanding, Arguing
& Using Evidence in MN
Minneapolis
July 26 • 3.0 Credits
MCLE
Elimination of Bias
s Between the World
and Me: A Bench and
Bar Discussion
Minneapolis
Immigration Law
s Immigration Law in
2016: New Developments
and Practice Tips
Minneapolis
July 25 • 3.0 Credits
MCLE
Law Office
Management
s Introduction to
Document Assembly
Webinar
Aug 12 • 1.0 Credit
MSBA
Probate & Trust Law
s Technology Tips and
Tricks for the Probate and
Estate Planning Attorney
Minneapolis
July 14 • 1.0 Credit
MSBA
Solo/Small Firm
s 2016 Strategic Solutions
for Solo & Small Firms
St. Paul
Aug 8 • 11.25 Credits
MCLE
July 20 • 2.0 EOB Credits
HCBA
Family Law
HCBA
Monday, August 8, 2016
Burl Oaks Golf Club,
Minnetrista, MN
Register Online:
www.hcba.org
s 40 Practical Tips for
Handling Minnesota
Divorces
Minneapolis
10 Bench&Bar of Minnesota s July 2016
July 21 • 2.0 Credits
MCLE
s Charity Golf Classic
Battered Women’s Legal
Advocacy Project
s Annual New Laws
This two-day training includes
information on Minnesota state
legislative changes, Minnesota
Court of Appeals decisions,
immigration policy changes, federal
legislative changes, and federal
appellate court decisions on topics
that most affect domestic violence
victims.
Grand Marais: August 11-12
Bemidji: August 18-19
Willmar: August 25-26
Hinckley: September 8-9
Rochester: September 22-23
Metro: October 3-4
CLE credits: 12.0 credits requested
Contact: [email protected] or
(612) 343-9845
Website: www.bwlap.org
Evolve Law
s Alternative Legal
Business Models
Presented in association with the
MSBA Technology conference. It’s
an exciting time in the law with
new technology and alternative
licensing models driving change.
Clients are demanding innovation
in legal services including mobile
technology. Alternative Business
Structures, Limited License Legal
Technicians in WA State, and
Alternative Fee Arrangements are
just some of the trends. Join our
expert panel as they discuss how
these new legal business model
improve access to justice. Date:
October 3, 2016
Time: 5:30 - 8:30 p.m.
Location: Lakeville, MN
CLE Credits: 1.0 credit requested
Register: evolvelawnow.com
www.mnbar.org
August 7-9, 2016
InterContinental Saint Paul Riverfront
In the Twin Cities for the First Time Ever!
Strategic SolutionS for
Solo & Small
Firms 2016
SM
Photo Credit (L-R): Padelford
Packet Boat Co.; Bob
Leo; Pirate Johnny
Don’t Miss the Event of the Year for Minnesota
Solo and Small Firm Attorneys!
Visit Minncle.org for full details or to register. Or call 800-759-8840.
Minnesota Continuing Legal Education
Co-sponsored by the Outstate Practice Section, the Practice Management and Marketing Section, and the Solo and Small Firm Section of the MSBA
ProfessionalResponsibility
By Susan Humiston
I
The unseen work of the OLPR
nvestigating and prosecuting unprofessional conduct
takes up most of the time of personnel in the Office of
Lawyers Professional Responsibility (OLPR), and is the
primary responsibility of the OLPR pursuant to court
rule.1 However, the OLPR performs a number of other
important functions that might be of interest to attorneys in
Minnesota.
Advisory Opinions
Every day, an attorney in the OLPR is assigned to provide
advisory opinions to Minnesota lawyers and judges who
call the OLPR seeking guidance. Although many states do
not provide this service, Minnesota has long offered this
free service to members of the bar. Guidance is limited to
prospective conduct. Questions relating to past conduct,
conduct of third parties, or questions of substantive law
are not answered. The service is confidential and, while
not binding on the Minnesota Supreme Court, if the facts
provided by the lawyer requesting the opinion are accurate
and complete, compliance with an opinion would likely
constitute a good faith attempt to comply with the Minnesota
Rules of Professional Conduct (MRPC). In 2015, the OLPR
provided more than 2,000 advisory opinions. You may request
an opinion by calling (651) 296-3952, and asking for the
A/O attorney, or by submitting a written request through the
website at www.lprb.mncourts.gov.
SUSAN HUMISTON
is the director of the
Office of Lawyers
Professional
Responsibility and
Client Securities
Board. She has
more than 20
years of litigation
experience, as well
as a strong ethics
and compliance
background. Prior
to her appointment,
Susan worked inhouse at a publicly
traded company, and
in private practice as
a litigation attorney.
Ethics Presentations
Legal ethics education is an important
function provided by the OLPR.
During the last fiscal year, attorneys in
the OLPR presented at least 50 CLEs
throughout the state. In addition, the
OLPR hosted an annual Professional
Responsibility CLE in September,
which is always free for district ethics
committee volunteers. The primary
challenge for the OLPR at this time
is ensuring that case prosecution is
timely, while also carving out time to
fulfill the ethics education role.
Overdraft Notification Program
Banks holding lawyer trust accounts
are obligated to report all overdrafts
to the Director’s Office pursuant to
Rule 1.15, MRPC. When the director
receives notice of an overdraft, the
OLPR will obtain and review the
lawyer’s trust account books and
records to ensure compliance with the
rules. In 2015, the Director’s Office
received 75 overdraft notifications.
The most frequent causes of overdrafts
were checks written in error on the
trust account (as compared to the
business operation account) or bank
12 Bench&Bar of Minnesota s July 2016
error. Many overdraft files are closed with recommendations
for improvements to the lawyer’s trust account books or
practices; however, sometimes, the Director’s Office converts
overdraft inquiries into disciplinary investigations when
errors or shortages are found. In 2015, 18 files that began as
overdraft inquiries were closed with discipline. Because trust
accounts impose serious obligations on lawyers, the OLPR
has devoted resources to helping lawyers understand their
obligations. The OLPR has a frequently asked questions
section on its website about trust accounts, and has two
detailed brochures, Other People’s Money: Operating Lawyer
Trust Accounts (September 2015), and Maintaining Lawyer
Trust Accounts with Quicken Basic (2006), available on the
website. Trust account violations are always treated seriously
by the OLPR. Please take the time to ensure you understand
your obligations.
Professional Firms
Minnesota has a professional firm act, Minn. Stat.
§319B.01 to 319B.12, which requires firms engaged in
the practice of law to file annual reports with the OLPR,
in addition to any required secretary of state filings. The
statute covers corporations, limited liability corporations,
and limited liability partnerships wherever those entities may
be organized, registered or incorporated, if providing legal
services in Minnesota. More than 2,360 firms filed annual
reports with the OLPR during the last fiscal year, but the
Director’s Office suspects that numerous entities required to
do so do not make the required annual filings. Take a moment
to ensure your firm is in compliance.
Probation Department
The probation department administers two types of
attorney disciplinary probations: private and public. Private
probations may be agreed to as part of the resolution of
a complaint against an attorney where an attorney has
committed a rule violation that is more than isolated and
non-serious (thus beyond an admonition) but may not give
rise to a need for public discipline. Public probations are
imposed by the Minnesota Supreme Court.
In 2015, there were 30 new probations: 18 public and 12
private. More than half of the 2015 new probations involved
an attorney’s failure to properly maintain his or her trust
account. Seven of the new probations in 2015 involved
mental health issues. Substantial time is devoted to probation
supervision. Two attorneys and two paralegals devote a total
of approximately 40 hours per week to probation supervision,
and an additional 27 volunteer supervisors also devote
substantial time to supervision.
Trusteeships
Rule 27(a), RLPR, authorizes the Supreme Court to
appoint the director of OLPR as trustee of an attorney’s files
or trust accounts when no one else is available to protect
the clients of a deceased, disabled or otherwise unavailable
lawyer. Recently, the director has been appointed trustee of
the client files for four deceased attorneys, and trustee of
www.mnbar.org
ProfessionalResponsibility
the trust accounts of three deceased attorneys. Attorneys,
particularly solo practitioners, should have succession plans in
place to ensure that client interests are protected upon your
death or disability. This is not just something for more senior
lawyers. The most recent trustee appointment in the OLPR
arose from the sudden death of a 47-year-old solo attorney.
Disclosure Department
Each year OLPR receives hundreds of requests for attorney
disciplinary records. Public discipline is always disclosed.
Private discipline is disclosed with an executed authorization
from the affected attorney. In 2015, 840 requests involving
1,297 attorneys were received. Entities making the most
requests included the National Conference of Bar Examiners,
individual attorneys, and other states’ disciplinary authorities.
Legal consumers can also check the OLPR website for records
of public discipline before retaining an attorney.
Website
The OLPR maintains a website, lprb.mncourts.gov, which
contains a wealth of information. On the site, you can find
the current rules (both the Minnesota Rules of Professional
Conduct and the Rules on Lawyers Professional Responsibility), secondary sources such as historical Bench & Bar and
Minnesota Lawyer articles (organized by rule and subject),
a suspended and disbarred attorneys list, attorney search
capabilities containing all public discipline, trust account information and resources, professional firm filing requirements,
cross-border (multijurisdictional practice) information,
Lawyers Board Formal Opinions, annual reports, complaint
forms, and information about the complaint process.
Conclusion
In 2015, 1,210 complaints were filed, 65 attorneys were
publicly disciplined, an additional 112 private admonitions
were issued, and 528 files remained open at the end of
the year. During the first five months of 2016, 477 new
complaints have been filed, 25 attorneys have been publicly
disciplined, and an additional 39 matters are pending before
the Minnesota Supreme Court. Given these numbers, the
first priority of the Director’s Office is the timely investigation
and prosecution of unprofessional conduct. But the OLPR
provides many additional services focused around educating
attorneys and the public about professional ethics. More
details about these services can be found in the office’s
Annual Report, now available on the website. One final note
is appropriate. In July 2004, then-Director Ken Jorgensen
wrote essentially this same article for Bench & Bar. It is
amazing to see how little things have changed regarding the
behind-the-scenes work of OLPR during the intervening 12
years. Notwithstanding that fact, or perhaps because of that
fact, we are always interested to hear of additional ways in
which the office can be of assistance to the bar and to legal
consumers.
Notes
1 Rule 2, Rules on Lawyers Professional Responsibility
(RLPR).
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Colleague
ColleagueCorner
Meet Andrew Shaw
‘You wear many hats’
Tell us about your practice, particularly in the areas
of real estate and municipality and township law.
I have what I suspect is a traditional rural practice. You
wear many hats and know many, many people in the area.
Over the years I have gotten them out of jail, divorced, helped
them buy and sell property, probated their parent’s estates,
and handled most other situations you can think of. The
practice is never boring, and you rarely know where the day
will take you.
Over the years my practice has become more specialized
by phasing out those areas I never liked in the first place,
which I suspect most attorneys do. I have always enjoyed all
aspects of real property law, and city, township, and business
representation. The work is generally proactive and you are
dealing with bright, motivated people working toward specific
goals. On the flip side of the coin is the absolutely necessary
pro bono work that is the daily fare for most rural attorneys,
helping out people who really need it, which in the end is
perhaps the most satisfying thing I do.
After graduating from law school in the Twin Cities,
you started practicing law with your father in the
office he established in Deer River in 1950. Did you
ever doubt that that was the path you would take?
From my earliest recollection I always
had a desire to be an attorney
and practice with my father,
who used to take me to
court when I was young
to pass the windshield
time driving to various
county seats in
northern Minnesota. I
saw his interaction with
other attorneys and
judges and realized how
much he enjoyed his
work and the respect he
had in the community.
Becoming an attorney
was the most natural
thing in the world for me
and remains so to this day.
What was it like practicing with your father?
It was one of the best experiences of my life. To work with
a parent as a professional reveals a person you do not otherwise know growing up in the home. It was also a fantastic
learning experience, as he had been actively practicing for
40 years at the time I returned and had much to teach me of
the practical side of being a rural lawyer. Not many days go
by when I do not wish he was still in the next room, ready to
discuss some new matter that walked in that day.
When you face a challenge in your practice,
what resources are important to you?
Besides everything you can find online, the most valuable
resource is my fellow attorneys. When I began my practice
and had questions, I would contact local attorneys versed with
the issues and received openhanded, eager assistance at every
turn. They would send copies of pleadings, detailed letters of
instruction, and warnings of trouble I was about to encounter. The collegiality of attorneys in northern Minnesota has
always been outstanding and is a wonderful resource for young
attorneys needing a little guidance, or older attorneys facing
something new.
You’ve served for a number of years as a district
representative on the Council for the MSBA Real
Property Law Section and a couple years ago
you served on the Legislative Committee. Has
involvement with the MSBA been worthwhile?
Serving on the Real Property Section council and participating to a minor degree with the Legislative Committee
has given me the opportunity to become acquainted with the
most outstanding real property attorneys in Minnesota. They
are keenly interested in the issues of the day affecting real
property practice, legislation, and that day-to-day minutia
that makes our lives interesting. They are also a wonderful
resource for guidance and referrals, with comfort in knowing
that the referral is being sent to the best possible hands.
Do you have any advice for an attorney considering
a law practice in northern Minnesota?
If you can find an older attorney with an established
practice or a small firm who will take you in, that is obviously
the best course. As I believe there is a diminishing number of
private practice attorneys in outstate Minnesota, however, it
may also be possible to strike out on your own with guidance
from other attorneys in the area and sensible planning. I have
seen attorneys hang out a shingle and be very successful. It
can be done. s
ANDREW SHAW was born and raised in northern Minnesota and then lived in various
places until settling in Alaska. After working as an insurance adjuster in remote places,
he followed a lifelong desire to attend law school and return to northern Minnesota.
He graduated from William Mitchell in 1989 and has practiced law throughout northern
Minnesota for the past 27 years.
www.mnbar.org
July 2016 s Bench&Bar of Minnesota 15
Thank you to our 2015-2016 volunteers for coming forward to provide leadership within the MSBA and to the legal
profession. The work could not be accomplished without you, particularly those active in sections and committees.
MSBA 2015-16 Council
Michael W. Unger, President
Robin M. Wolpert, President-Elect
Sonia Miller-Van Oort, Treasurer
Paul W. Godfrey, Secretary
Charles Clippert, RCBA Representative
Brian Cunningham, Affinity Bar Representative
Dyan Ebert, Outstate Representative
Samuel Edmunds, Outstate Representative
Sarah Hunter, HCBA Representative
Anne Johnson, Minnesota Women Lawyers Representative
Claire Joseph, Affinity Bar Representative
Eric Larson, Assembly Representative
Thaddeus Lightfoot, Assembly Representative
Elisa Murillo, New Lawyers Section Chair
Jessie Nicholson, Assembly Representative
Judge Edward Wahl, HCBA Representative
T han k y o u assembly members
Minnesota State Bar Foundation
Jill Prohofsky, President
JeriLyn Reinhardt, Vice Chair
Catherine Asta, Secretary
Elizabeth Keyes, Treasurer
Esquire 36 Committee
Jenna Cieslak Hanson, Chair
Committees & Task Forces
Governance Committee
Dyan Ebert, Chair
Mock Trial Advisory Committee
Kristin Olson, Chair
Human Rights Committee
Margaret Erickson, Co-Chair
Tara Kalar, Co-Chair
Operations Committee
Sonia Miller-Van Oort, Chair
Alternative Legal Models Task Force
Ken White, Co-Chair
Susan Wiens, Co-Chair
Audit Committee
Gary Hird, Chair
Court Rules & Administration Committee
Charles Bird, Chair
Diversity & Inclusion Leadership Council
Bryan Browning, Co-Chair
Pamela Rochlin, Co-Chair
Phil Duran
Ivan Fong
Peter Glass
Thomas Nelson
Justin Page
Judge Nicole Starr
Adebisi Wilson
Judge Peter Reyes,
Facilitator of Strategic Planning
Elections/Appointments Committee
Jacqueline Dorsey, Chair
General Policy Committee
John Dornik, Chair
Insurance for Members Committee
Jody Cohen Press, Chair
Investment Committee
Tom Anderson, Chair
Judicial Election Campaign
Conduct Committee
Brett Olander, Chair
Life & the Law Committee
Molly Eiden, Co-Chair
Chris Siebenaler, Co-Chair
Membership Committee
Publications Committee
Holly Fistler, Chair
Rules of Professional Conduct Committee
Michael McCarthy, Chair
Technology Committee
Todd Scott, Chair
Certified Specialist Boards
Judiciary Committee
Daniel Cragg, Chair
Civil Trial Board
Candace Dale, Chair
Legal Assistance to the
Disadvantaged Committee
Janine Laird, Co-Chair
Julian Zebot, Co-Chair
Criminal Law Board
Andrew Birrell, Chair
Legislative Committee
Chris Morris, Chair
Gary Hansen, Vice Chair
Labor & Employment Board
Penelope Phillips, Chair
Real Property Board
John M. Koneck, Co-Chair
Terry A. Karkela, Co-Chair
MSBA SECTIONS
Administrative Law Section
Beverly Jones Heydinger, Chair
Tom Bailey, Vice Chair
Meghan Scully, Secretary/
Treasurer
ADR Section
Sharon Press, Chair
Richard Hendrickson, Treasurer
Lynn Nolan, Secretary
Agricultural & Rural
Law Section
Greg Bucher, Chair
Jared Peterson, Vice Chair
Sarah Jewell, Treasurer
Kale Van Bruggen, Secretary
Communications Law Section
Jason Topp, Chair
Michael Bradley, Vice Chair
Andrew Carlson, Treasurer
Kristin Berkland, Secretary
Family Law Section
Jill Meyer, Chair
Margaret Erickson, Vice Chair
Ryan Anderson, Treasurer
Anne Haaland, Secretary
Computer & Technology
Law Section
Joshua Carlson, Chair
Jonathon Farnsworth,
Vice Chair
Patrick Pazderka, Treasurer
Christina Kunz, Secretary
Food, Drug & Device
Law Section
Nancy Husnik, Chair
Christine Kain, Vice Chair
Kelly Laudon, Treasurer
Amy Fowler, Secretary
Construction Law Section
Jennifer Thompson, Chair
Elizabeth Larsen, Vice Chair
Mark Becker, Treasurer
Ryan Hatton, Secretary
Animal Law Section
Cathy Crane, Chair
Kristen Rice, Vice Chair
Christine Hinrichs, Secretary/
Treasurer
Consumer Litigation Section
Mark Schroeder, Co-Chair
David Goodwin, Co-Chair
Michelle Drake, Treasurer
Erin Hoffman, Secretary
Antitrust Law Section
Daniel Hedlund, Chair
Craig Davis, Vice Chair
Jaime Stilson, Treasurer
Emily Chow, Secretary
Corporate Counsel Section
Mary Dean, Chair
Kristen Larson, Vice Chair
and Secretary
Cindy Eidnes, Treasurer
Appellate Pratice Section
Liz Kramer, Chair
Aaron Van Oort, Vice Chair
Thomas Radio, Secretary/
Treasurer
Criminal Law Section
Kelly Mitchell, Chair
Richard Ohlenberg, Vice Chair
Max Keller, Treasurer
Joe Van Thomme, Secretary
Art & Entertainment
Law Section
Adam Gislason, Chair
Kelly Dougherty, Vice Chair
Daniel Boen, Treasurer
Stacy Schwartz, Secretary
Elder Law Section
Mary Frances Price, Chair
Andrea Smith, Vice-Chair
Stuart Deuring, Treasurer
John Kantke, Secretary
Bankruptcy Law Section
Amy Swedberg, Chair
John Lamey, Vice Chair
Lauri Schmid, Treasurer
Mychal Bruggeman, Secretary
Business Law Section
William Klein, Chair
James Pfau, Vice Chair
Marie Feely, Treasurer
Joseph Green, Secretary
Children & the Law Section
Wendy Watson, Chair
Linda Miller, Vice Chair
Lilian Ejebe, Secretary/Treasurer
Civil Litigation Section
Paul Godfrey, Chair
Melissa Wendland, Vice Chair
Douglas Elsass, Treasurer
Annamarie Daley, Secretary
Employee Benefits Section
Ted Rice, Chair
Kristyn Mullin, Vice Chair
Stacey Rice, Treasurer
Deb Linder, Secretary
Environmental, Natural
Resources & Energy
Law Section
Lindsey Remakel, Chair
Charles Salter, Vice Chair
Jeffery A Sepesi, Treasurer
Kieran Dwyer, Secretary
Health Law Section
Gina Kastel, Chair
John Hutchins, Vice Chair
Jesse Berg, Treasurer
David Aafedt, Secretary
Immigration Law Section
Robert Webber, Chair
Courtney Ernston, Vice Chair
Barb Erlandson, Treasurer
Ana Pottratz Acosta, Secretary
International Business Law
Section
Eugene Sherayzen, Chair
Boris Parker, Vice Chair
George Maxwell, Treasurer
Theodore Dorenkamp,
Secretary
Labor & Employment Section
T.J. Conley, Chair
Craig Trepanier, Vice Chair
Kelly Jeanetta, Secretary/
Treasurer
Military & Veterans Affairs
Section
Lieutenant Colonel
Lyndsey Olson, Chair
Ryan Zipf, Vice Chair
Brigadier General Johanna
Clyborne, Treasurer
Sara Sommarstrom, Secretary
New Lawyers Section
Elisa Murillo, Chair
Michael Boulette, Vice Chair
George Norris, Treasurer
Ryan McCarthy, Secretary
Outstate Practice Section
Steve Peloquin, Chair
Joseph Krueger, Vice Chair
Barbara Heen, Secretary/
Treasurer
Practice Management
& Marketing
Samuel Edmunds, Chair
Kathleen Harrell-Latham,
Vice Chair
Chris Head, Treasurer
Joseph Larson, Secretary
Probate & Trust Law Section
Peter Hatinen, Chair
Mavis J. Van Sambeek,
Vice Chair
Sonny Miller, Treasurer
JoEllen Doebbert , Secretary
Public Law Section
Lisa Godon, Co-Chair
Inta Sellars, Co-Chair
Lynn Belgea, Treasurer
Patricia Beety, Secretary
Public Utilities Law Section
Greg Merz, Chair
Christina Brusven, Vice Chair
Andrew Moratzka, Secretary/
Treasurer
Real Property Law Section
Matthew Foli, Chair
Alan Thiel, Vice Chair
Eric Johnsrud, Treasurer
Jennifer Gilk, Secretary
Social Security Disability
Law Section
Michael Persellin, Co-Chair
David L. Christianson, Co-Chair
Emily Cooper, Treasurer
Anthony Mannella, Secretary
Solo and Small Firm Section
Anthony Bushnell, Chair
Allison Maxim, Vice Chair
Susan Mundahl, Treasurer
Karin Ciano, Secretary
Tax Law Section
Masha Yevzelman, Chair
Benjamin Wagner, Vice Chair
Stephen Hopkins, Treasurer
Andrew Howard, Secretary
MSBA President 2016-17
Robin
Wolpert
A Long Road
to the Law
By Amy Lindgren 18 Bench&Bar of Minnesota s July 2016
Photos by Stan Waldhauser
www.mnbar.org
A
s Robin Wolpert steps up to
lead the Minnesota State
Bar Association this summer, she won’t be the first
woman to have done so.
Nor will she be the first bar president
who has worked in government or as
corporate counsel. Certainly she won’t
be the first president from the ranks of
Minneapolis law firms, nor the first who
has taught law. And yet… might she be
the first MSBA president who has done
all those things? Or, at least, the first to
have held those positions after first excelling in a different career entirely?
Wolpert has not only held several professional roles, she’s also amassed three
post-graduate degrees: a Masters and a
Ph.D. in Political Science from the University of Chicago, and her J.D. from Cornell. Wolpert’s goal was to achieve mastery in the law to empower her clients
and she has created a cohesive whole
from the disparate parts. One constant
has been her love for the law and passion
for public service. Although law wasn’t
her first career, legal scholarship deeply
informed her work as a Ph.D. political
science professor, first at Georgetown and
then at the University of South Carolina.
When she left her tenure-track position
to study law at Cornell, she was better
prepared than most to tackle both the
labors of law school and the application
of the material to real-world situations.
Early Years
There’s an element of the Renaissance scholar in Wolpert’s career journey,
which is something her sister, Candace
Correa, says could be rooted in the upbringing they shared with their brother,
Jeffrey Bye, in rural Longmeadow, Massachusetts. Situated near the Berkshires
in the western part of the state, the town
was simultaneously bucolic and urbane,
offering the three Bye children access to
art museums and theaters along with the
small town advantage of playing outside
until the dinner bell was rung. Wolpert
is somewhat sheepish when describing
an early lifestyle so classically Americana
that her town was included in an edition
of the Preppy Handbook. But whatever
privilege she might have experienced as
the daughter of a successful physician
and stay-at-home mom, it was overlaid
by the discipline and hard work expected
of the grandchildren of industrious immigrants and entrepreneurs. Growing
up, she joined her siblings in helping at
the various businesses owned by their
maternal grandparents, including a golf
driving range, an archery center, a liquor
www.mnbar.org
store, a sandwich shop, and a video store.
While this early entrepreneurial exposure may have influenced Candace and
Jeffrey’s careers (she’s now an independent business consultant in Los Angeles,
he’s an artist in Pennsylvania), Robin
used her entrepreneurial spirit for a different purpose—public service. As Correa says, “Robin is someone who can get
very focused, and she’s not motivated by
monetary gains. She feels like the best
jobs are the ones that don’t pay, like this
one with the bar association. That’s part
of her makeup.”
When it was time for college, Wolpert chose Colby College in Waterville,
Maine, with the intention of following
her father into medicine. It seemed like
a good fit for a studious person with a
growing social conscience. Robin started college as a biology and government
major, but soon found that she loved political science and the law more than science. And then? She joined the fledgling
campus radio station, became a deejay
and program director, and met her future
husband. Seth, another pre-med student,
was the station’s chief engineer and then
the station manager, giving him ample
opportunity to get to know his future
wife. “We just hit it off,” he says of working with Robin. “She was a fun deejay—
outgoing and excited on the air, a lot of
energy, always happy. She’s verbal and
colorful and spontaneous. I think people
really liked hearing from someone who is
all-in and enthusiastic.”
It wasn’t long before the two decided
to join forces. Seth stayed with medicine and it was his acceptance to medical school that brought the couple to
the University of Chicago, where Robin
pursued her Masters and Ph.D. in political science. Over the next 10 years, they
moved numerous times as Seth advanced
through his residency and surgical internship and Robin pursued her career as
a university professor and legal studies at
Cornell Law School in upstate New York.
In the end, it was Seth’s opportunity to
practice at Regions hospital in St. Paul,
coupled with his family ties to Minnesota, that brought the two of them to the
place they have called home for almost
20 years. They now live in Stillwater with
their daughter Isabelle, 13 and a ski racer
like her mom, and their “boys,” Samoyeds named Ivan and Igor.
First Profession
Although Robin says Seth “was born
knowing he’d be a doctor,” her own
career has been a more evolutionary
proposition. As a graduate student and
professor, she discovered a love of teaching and an intensifying interest in constitutional law. Her dissertation on school
desegregation and the conflict inherent
in a system of constitutional democracy
deepened her understanding of the roles
played by each branch of government,
while teaching subjects such as judicial
politics and constitutional law provided
an opportunity to explore the issues with
students. According to George Krause,
now a professor of political science at the
University of Pittsburgh, and one of the
people who hired Wolpert at the University of South Carolina, she proved to be a
gifted instructor. “Robin was never trying
to get her students to see things the way
she did. She always worked to see things
their way and help them to make a better
argument,” he recalls. “That, I think, is
the pinnacle of constructive criticism in
academia, and a lot of people can’t do it.”
As much as he admired Wolpert’s
scholarship and teaching style, Krause
says he was also taken with her ability to
fit into a setting that must have seemed
foreign to her. “I’m sure Columbia had
to be culture shock,” he says, “but to
her credit I never once heard her moan
about being in South Carolina. Just the
opposite. I’d frequently hear her say,
‘Well, you won’t find this in Washington, D.C.’ She would just find the best of
everything wherever she was. She even
picked up an interest in country music.”
Actually, Wolpert says, laughing, following country music wasn’t incidental, but
intentional on her part. “It’s not really
my style, but when I went to South Carolina, I was like, ‘I am going to embrace
this culture.’ So that meant listening to
Garth Brooks.”
As it turned out, Wolpert’s dial was
tuned to country for only a couple of
years. Although she was doing well and
had secured a coveted tenure-track role,
she had always planned to go to law school
and felt a growing need to do something
to make a difference in people’s lives.
After completing her classroom work at
Cornell, she was ready to move to Minnesota with Seth and finish her J.D. at
the University of Minnesota by pursuing
clinics and internships here. It’s a move
she recommends to students trying to
determine where to study law. “I always
ask, ‘Where do you want to practice?’
Because if you want to practice here, it’s
great to be trained here.” Wolpert saw
the advantage of this strategy first-hand
as the connections she made in this last
year of law school turned into colleagues
and networking contacts when she officially entered the profession.
July 2016 s Bench&Bar of Minnesota 19
“She’s an unbelievable
resource to have because
of the varied history she
brings with her. If you have
a problem, you can turn to
her and she’ll think of five
different ways to solve it.
I’m excited about her new
role because whatever she
decides to do with her term,
she can make an impact.”
– Jean Burdorf
Life as a Lawyer
One of Wolpert’s first roles in her law
career was clerking for Minnesota Supreme Court Justices James Gilbert and
Paul Anderson. Justice Anderson, now
retired, enjoyed Wolpert’s combination of
enthusiasm and passion for the law, calling her “an idealist who sees things not as
they are but as they should be. And that’s
a good thing,” he says. “It’s one of the
reasons we have heroes and mentors who
give us vision and hope that things can
be better.” Initially, he recalls, Wolpert’s
challenge was translating her enthusiasm
into pragmatic tools. The first dissent she
drafted for him ran to 44 pages—more
than twice as long as he needed. “But it
was intellectually honest and she had understood the direction I wanted to take,”
he says, “so I was able to revise it and get
the fourth vote that I needed. On my
court, you only need four.”
Wolpert didn’t take long to learn the
ropes; her next position as an attorney
brought her to Dorsey & Whitney, a firm
she had served as a summer clerk. Here
she honed her skills in representing clients while also mastering the balance between billable hours and in-depth briefs.
She also began logging an impressive
number of pro bono hours—up to 400 in
some years. It was during this time that
she was adverse counsel on a case opposite Cliff Greene, cofounder and partner
at Greene Espel in Minneapolis. He was
20 Bench&Bar of Minnesota s July 2016
impressed with “her dedication to her
client’s interests, her ethics, and her willingness to develop a creative resolution
instead of insisting on litigation,” he recalls. In this case, the resolution Wolpert
crafted included having the defendant
conduct seminars on the First Amendment. Greene remembered the encounter and later offered Wolpert a position at
his firm. She rose to partner and stayed
seven years.
The next stop on Wolpert’s career
path took her away from billable hours
and into corporate law. She accepted an
offer to join 3M as senior counsel in its
new Compliance & Business Conduct
Department, a position she says exposed
her to work processes and entire areas of
law she hadn’t encountered before. It was
the perfect transition from the complex
civil litigation Wolpert had been immersing herself in. Now she was learning leadership and management practices from
one of the world’s top companies while
developing policy and internal training
modules and interacting with some of the
best minds in the field. Wolpert found
herself fascinated by the parallels between mega-corporations and the practice of law. “For example,” she says, “how
do you lead in a huge matrix that extends
across the world—how do you drive innovation? You can see the parallel with
being a lawyer: How do you drive social
change across American democracy? It’s
really all about leadership and finding out
who the stakeholders are. And it’s never
one person’s effort. Leadership at 3M is
all about bringing together people from
across the globe with overlapping areas
of expertise to collaborate and create the
best approach.”
If Wolpert sounds a bit smitten, that’s
because she was. She calls the 3M experience a gift and would not have left if
it weren’t for a tragedy that touched her
family. When a friend of the family was
brutally murdered, Wolpert found herself
drawn into the world of criminal prosecution almost overnight. After receiving
clearance from 3M, she volunteered to
assist the Washington County Attorney
in the prosecution of this case and any
appeal. By the time the appeal was heard
(and the conviction affirmed) by the Minnesota Supreme Court, Robin was working at the Washington County Attorney’s
Office as a prosecutor and appellate lawyer. Just as she’d quickly gained her footing in private practice and then as a corporate counsel, Wolpert now learned a
new area of the law and how to make the
most of scarce resources in a public sector
role. She loved her job as a “minister of
justice.” Her friend Jean Burdorf, a senior
assistant Hennepin County attorney,
had frequent conversations with Wolpert as they shared their experiences. She
says, “Robin was always so aware of how
high the stakes are in public sector law.
www.mnbar.org
Most Memorable Cases
I
f you ask a litigator to chronicle her life, you might get a biographical listing
of events in reply. But if you ask what has impacted her and her career, you’ll
instead receive a list of key cases and how she made a difference in someone’s
life or moved the law. In Robin Wolpert’s case, a chronology of jobs, awards and
community leadership would be almost too lengthy to list, so we refer you to her
LinkedIn profile for those details (www.linkedin.com/in/robin-wolpert-28b4941).
Here instead is a short grouping of standout cases, from among the hundreds she
has argued or been part of.
“You can never tell
what Robin’s going
to do next. She’s not
predictable in that way.”
– Robin Ann Williams
n State v. Hess, et al (Minnesota
Supreme Court 2004), which concerned
a challenge by individual property owners
along the Paul Bunyan trail to the state’s
ownership of the trail. Wolpert and B.
Andrew Brown of Dorsey & Whitney
wrote the amicus brief based on the 1898
property deed to the railroad, providing
the key legal argument and evidence for
the Supreme Court to validate the state’s
ownership of the trail and affirm past
and future conversion of railroad beds
into public recreational trails statewide.
Wolpert: “This case represents the best
of Dorsey’s pro bono commitment and
leveraging the expertise of lawyers across
the firm to get a terrific result.”
n Barbara Dunn v. UCare Minnesota,
Department of Employment and
Economic Development (2009), arguing
that the employee had good cause
to quit (and was due unemployment
compensation). Wolpert: “This victory
made a big impact on Dunn’s life; it was
rewarding personally and professionally
to see how it made a difference.”
n Roman Nose v. State (2014), a postconviction case in which Roman Nose
challenged his sentence of life without
the possibility of release based on the
U.S. Supreme Court’s decision in Miller
v. Alabama. Arguing that Miller was not
retroactive, Wolpert won affirmation of
the original sentence and the interests of
the crime victim’s family.
n State v. Fox (2015), affirming the
defendant’s conviction for first degree
premeditated murder of Wolpert’s family
friend.
n Washington County v. Walker
Properties of Woodbury (2015),
involving a developer’s challenge to
a district court decision that the state
acquired absolute title to property
through tax forfeiture The developer’s
arguments, if adopted by the court of
appeals, would have called into question
the marketability of title of tax-forfeited
property across the state. Wolpert: “The
result here truly showcased the best of
government lawyers who specialize in
this field coming together from offices
across the state to identify the best
arguments and ways to clearly explain
the complicated tax forfeiture process to
the appellate courts.”
www.mnbar.org
July 2016 s Bench&Bar of Minnesota 21
If you can sustain a conviction, that’s a
goal. But you have to pay attention to
procedural fairness. It wasn’t only ‘Can
you win the case?’ but also ‘Should you
win the case?’ These are peoples’ lives, or
a person’s liberty. That’s a pressure that’s
different in the public sector that Robin
was always very aware of.”
Although Wolpert stayed only two
years with the county attorney’s
office, she says she feels a deep impact from her experience there. Everything from the fast-paced courtrooms to the victims’ tragedies to
the social costs of criminal behavior was etched into her psyche.
Eventually she realized that she
couldn’t maintain her workload
and meet her obligations as an officer of the Minnesota State Bar Association as well. For the first time
in her career, Wolpert left a job
without another one waiting for
her, vowing to take a few months
before choosing the next position.
Bar Leadership and
Pro Bono Work
Wolpert kept her promise to herself,
waiting almost seven months before accepting a new role as an attorney with
Sapentia Law Group in Minneapolis. In
the meantime, she filled her calendar
with a mix of relaxation and intensive pro
bono work, including hundreds of hours
meeting with attorneys across the state
in preparation for leading the MSBA.
She’d been active for years in any number of organizations, from the Minnesota
Supreme Court Historical Society to the
Commission on Judicial Selection to the
Minnesota Citizens Commission for the
Preservation of an Impartial Jury (known
less formally as The Quie Commission).
Now she had the chance to dive in even
more deeply, as she will when leading the
bar association as president.
Chuck Webber believes he’s seen
enough of Wolpert’s leadership style to
predict a good outcome for the year. A
partner at Faegre Baker Daniels, Webber led the MSBA Appellate Section
when Wolpert was the vice chair. From
that vantage point, he experienced her
enthusiasm for the profession, as well as
her “creative and interesting ideas for bar
education.” But just as memorable for
him was the disagreement they had over
an official position related to the Quie
Commission. Although neither changed
the other’s mind, Webber was especially
impressed that she didn’t take their differences personally. “I don’t think she
could do the job well [as bar president] if
she was going to take things personally,”
Webber notes. “The bar is not a monolith. If there’s any organization that you
22 Bench&Bar of Minnesota s July 2016
Bucket List
What would Robin do if she
had more time, and what does
she intend to do, regardless
of time’s constraints?
✓ add more girl trips with daughter
Isabelle;
✓ finish (start?) the six-volume set
of Proust she purchased after
learning how influential it was on
Justice Breyer’s understanding of
American democracy;
✓ do more hands-on work on poverty
issues by getting more involved in
the nonprofit Urban Venture;
✓ see as much of the world as
possible, including Jordan and the
Seychelle Islands off the coast of
Africa;
✓ return to an early love of cooking
and break away from takeout
dinners;
✓ continue firearms practice with her
trainer, to attain some degree of
proficiency in something that used
to scare her;
✓ continue to enjoy ski trips with
Seth and Isabelle to Whistler,
British Columbia;
✓ eat more candy and sweets,
including her beloved Bit
O’Honeys, mango ginger chews
and fireballs, as well as the
British-based HobNob biscuits
she discovered on a visit to the
Falkland Islands;
✓ stock up on Diet Mountain Dew,
because she’ll need that caffeine
rush for the year ahead.
could say doesn’t speak with one voice,
it’s a bunch of lawyers. I think she’s in a
good position to take that in stride and
hopefully even harness it.”
Indeed, the motto Wolpert has
chosen for her presidency echoes Webber
on that point: “Making MSBA work for
everyone, with no one left out.” As she
explains it, this means following the bar
association’s strategic plan while
paying close attention to all constituencies, including new lawyers
who need a strong foundation for
success, law students who need
support to ensure a good launch
into the field, members of minority and affinity bars whose interests
are sometimes underrepresented,
and attorneys outside the Twin Cities, whose concerns are Wolpert’s
special responsibility as the bar’s
representative to Greater Minnesota. She’s also planning initiatives
or special focus into current topics, such as chemical dependency
issues for attorneys and juvenile
justice concerns.
Among others with confidence
in Wolpert’s ability to reach these goals is
her current colleague, Sonia Miller-Van
Oort, a founding member of Sapentia
Law Group. Besides having hired Wolpert to work on behalf of business clients
at Sapentia, Miller-Van Oort has also
worked with her as a fellow officer of the
MSBA, witnessing her leadership style
on a frequent basis. “I would describe
her as a collaborative leader,” Miller-Van
Oort says. “Her style of leadership allows
people to participate in an engaging way. I
know people very much appreciate that.”
Jean Burdorf agrees, adding that “She’s
an unbelievable resource to have because
of the varied history she brings with her.
If you have a problem, you can turn to
her and she’ll think of five different ways
to solve it. I’m excited about her new role
because whatever she decides to do with
her term, she can make an impact.”
If everyone seems to agree on Wolpert’s strengths for the bar presidency,
they’re equally unanimous on another
point: They can’t anticipate what more
she’ll accomplish in her career. As her
friend Robin Ann Williams, COO for
Bassford Remele, P.A., says, “You can
never tell what Robin’s going to do next.
She’s not predictable in that way.” Husband Seth adds, “I don’t think Robin has
ever done anything she didn’t want to
do, so it will be something she enjoys.”
And Candace, who has known Wolpert
the longest, provides this perspective on
her sister: “It’s not about the destination
with Robin, it’s about the journey. But
whatever it is, it will be about helping the
broader population or a bigger cause.” s
www.mnbar.org
2016 Legislative Session Recap
At the Capitol, a short session and partisan divisions stymied a lot of legislation.
But most of the MSBA agenda—including family law reforms and
a series of technical changes to other laws—was enacted.
T
he end of the 2016 Minnesota
legislative session brought to
mind William Shakespeare’s
line about how it’s better to be
three hours too soon than a minute too
late. The 2016 session was the shortest
in recent memory, and the compressed
timeline—coupled, of course, with the
partisan divide in state government—
made it difficult for lawmakers to resolve
major issues like taxes, transportation,
and bonding. Negotiations gained steam
in the final hours, though, and there was
frantic activity in the House and Senate on the last night of the session as the
Legislature sped toward its midnight adjournment deadline. At one point someone on the Senate floor shouted, “Cover
the clocks!” but it was too late.
When the dust settled, the House and
Senate had failed to agree on a bonding
bill and transportation funding, although
they did pass a supplemental budget bill
and a tax bill. But Gov. Mark Dayton refused to sign the tax bill, citing a costly
drafting error related to charitable gambling. When this issue of Bench & Bar
went to press, negotiations about a potential special session were ongoing between
the governor and legislative leaders.
THE MSBA AGENDA
One of the casualties in the vetoed
tax bill was an MSBA-supported provision that would bar the location of a taxpayer’s attorney from being considered in
domicile determinations. Despite that,
the MSBA still had a very successful session. Numerous bills supported by various sections of the bar made it through
the legislative committee maze and were
signed into law. Our successful initiatives
this year included the latest in a series of
family law reforms as well as four technical bills that were rolled into HF1372
(Chapter 135), which functioned as an
omnibus MSBA vehicle.
ute. The new law is contained in Article Minnesota’s new LLC statute. The
1 of Chapter 135. Effective May 23, 2016. updates include:
n prohibiting LLCs from convert(Chapter 135 has an August 1, 2016 effecing directly to public benefit corpotive date, but Article 1 was made effective
immediately by a provision in Chapter 187.)
rations;
n granting the board of a boardProbate Code update: Article 2 of Chapmanaged LLC the authority to
transfer assets to wholly owned
ter 135 incorporates several updates to
subsidiaries and to grant security
Minnesota’s Probate Code that were suginterests in the LLC’s asset-secure
gested by the Probate & Trust Law Secloans;
tion, including:
n modifying terminology regarding
n allowing arbitration in cases inconversions and domestications to
volving guardians and conservators;
avoid issues with states that use
n defining “governing instruother terminology in their LLC
ment,” a frequently used term in
statutes;
the Probate Code;
n specifying the fees payable to
n clarifying a surviving spouse’s
the Secretary of State for certain
entitlement when there is a prefilings.
marital will;
Effective retroactively from August 1,
n allowing courts to reform the
2015, except for the public benefit corporaterms of a governing instrument to
tion conversion provision, which became efreflect the transferor’s intention,
fective May 23, 2016.
and to correct mistakes to achieve
certain tax objectives;
Family Law: The 2016 session marked
the end of a years-long process of family
n protecting beneficiaries of a revocable trust from being cut out
law reforms. Legislation passed in 2014,
of a specific gift of property if the
2015, and this year was the product of
trustee is required to sell that propmany hours of intense study, discussion,
erty to pay medical expenses;
and negotiation among a broad group of
n allowing affidavits from attesting
stakeholders that included the MSBA’s
witnesses;
Family Law Section and the Legal Sern increasing specific dollar amounts
vices Advocacy Project, which also proin the Probate Code that haven’t
vided essential lobbying efforts. There
been increased in many years.
were two significant parts to this year’s
Effective August 1, 2016.
family law reforms.
Receivership and ABC Cleanup: Article
3 of Chapter 135 modifies the statutory
chapters dealing with receiverships and
assignments for the benefit of creditors.
These statutes were created by legislation brought forward a few years ago by
the Business Law Section and the Real
Property Section. This year’s changes
incorporate some technical cleanup suggestions from those sections. Effective
August 1, 2016.
Pet Trusts: With the support of the MSBA’s Animal Law and Probate & Trust LLC Clarifications: Article 4 of Chapter
Law sections, Minnesota became the last 135 comprises suggestions from the
of the 50 states to create a pet trust stat- Business Law Section to improve
24 Bench&Bar of Minnesota s July 2016
1. Modifying the parenting expense
adjustment with a new formula that
rounds out the “cliff” at 45 percent
parenting time. (See Chapter 189,
Article 15, Sections 17-21.) Effective
August 1, 2018.
2. Creating a child support advisory
task force. The goal of the task force is
to create a forum away from the Capitol to study and discuss child support
issues, and, when appropriate, suggest well-vetted changes to the Legislature. (See Chapter 189, Article 15,
Section 22.) First report due February
15, 2018.
www.mnbar.org
Obsolete Laws: The final piece of the
MSBA agenda was a Real Property Section proposal to repeal some obsolete
statutes. These changes were included
in Chapter 158. The repealed statutes
are Minn. Statutes 386.23, 507.37, and
557.07.
OTHER NOTABLE NEW LAWS
ADR: Chapter 167 requires courts to provide information about ADR processes
to parties in family law cases. Effective for
cases filed on or after August 1, 2016.
Assault: Chapter 93 clarifies 4th degree
assault of a peace officer with bodily fluids or feces by removing the requirement
of an accompanying physical assault. Effective for crimes committed on or after August 1, 2016.
Bias: Chapter 189 increases the maximum penalty for felony assault motivated
by bias against a person’s perceived race,
color, religion, sex, sexual orientation,
disability, age, or national origin (see Article 4, Section 14). Effective for crimes
committed on or after August 1, 2016.
Body Cameras: Chapter 171 regulates
police body camera data. Effective August
1, 2016.
Construction: Chapter 133 limits retainage to 5 percent and allows work to be
suspended if undisputed payments are
not received. Effective for building and
construction contracts executed on or after
August 1, 2016.
Courthouse Security: Chapter 189 supplies $1 million for a courthouse security
grant program (see Article 4, Section 2).
Funds are available until June 30, 2019.
Criminal and Juvenile Justice: Chapter
116 expands the Criminal and Juvenile
Justice Information Group and redefines
its mission. Effective August 1, 2016.
Disability Discrimination: Chapter 159
modifies the Minnesota Human Rights
Act by adding provisions related to architectural barrier violations. The new law
regulates notice letters and creates affirmative defenses. Effective May 23, 2016.
Digital Assets: Chapter 135 incorporates
a modified version of the Revised Uniform Fiduciary Access to Digital Assets
Act (see Article 2, Sections 2-20 and
33). Effective for fiduciaries acting under a
governing instrument executed before, on, or
after August 1, 2016.
oughly overhauls Minnesota’s controlled spousal maintenance order unless the
substance laws. Various effective dates but parties agree or it would create extreme
mainly August 1, 2016.
hardship. Numerous suggestions from
the MSBA’s Family Law Section were
Estate Recovery: Chapter 189 limits incorporated into this new law. Effective
medical assistance estate recovery claims for modification motions brought on or after
(see Article 19, Sections 15 and 16). August 1, 2016.
Pending federal approval, effective retroactively for services rendered on or after Janu- Surrogacy: Chapter 189 establishes a
ary 1, 2014, and for claims not paid prior to legislative commission to study surrogacy
(see Article 13, Section 66). Report due
July 1, 2016.
by December 15, 2016.
Identity Theft: Chapter 121 increases
the statute of limitations to five years for Tax Debt: Chapter 100 incorporates tax
identify theft crimes involving eight or debts into debt settlement services regumore direct victims and losses to direct lations. Effective August 1, 2016.
and indirect victims that exceed $35,000.
Effective for crimes committed on or after Theft: Chapter 152 expands the fiveAugust 1, 2016, and for prior crimes if the year felony for damaging or stealing enlimitations period did not expire by then.
ergy transmission or telecommunications
equipment to include components used
Interference: Chapter 175 sets a three- to generate, transmit, or distribute elecyear gross misdemeanor penalty for in- tricity. Effective for crimes committed on or
terfering with a body or scene of death. after August 1, 2016.
Effective for crimes committed on or after
Tort Liability: Chapter 87 protects local
August 1, 2016.
governments from tort liability related to
Juror Compensation: Chapter 189 dou- surplus equipment donated to nonprofits.
bles the juror per diem and mileage re- Effective August 1, 2016.
imbursement rates (see Article 4, Section
Transfer-on-Death: Chapter 189 allows
3). Effective July 1, 2016.
transfer-on-death designations for waterMarriage Licenses: Chapter 152 elimi- craft (see Article 3, Section 27). Effective
nates the five-day waiting period for mar- August 1, 2016.
riage licenses. Effective August 1, 2016.
Trusts: Chapter 158 adds missing verbs
Orders for Protection: Chapter 176 elimi- to the definition of “qualified beneficiary”
nates the OFP respondent filing fee. And in Minn. Stat. 501C.0103 (see Article 1,
Chapter 141 removes the mandatory Section 197) and clarifies that the list of
hearing requirement for OFP extensions non-judicial settlement items in Minn.
if the petitioner only seeks limited relief Stat. 501C.0111 is not an exhaustive list
(unless the court declines the requested (see Article 1, Section 198).
relief or the respondent requests a hearing). Effective August 1, 2016.
Vehicular Homicide: Chapter 109 increases from 10 to 15 years the maximum
Revenge Porn: Chapter 126 makes it il- sentence for impaired criminal vehicular
legal to, without consent, solicit sex for homicide that occurs within 10 years of
another person or disseminate private certain other driving offenses. Effective
sexual images. Effective August 1, 2016.
for crimes committed on or after August 1,
2016.
Patent Trolls: Chapter 89 prohibits bad
faith patent infringement claims. The Work Comp: Chapter 110 adopts recomnew law prohibits private causes of action mendations from the Workers’ Compenbut allows the attorney general to bring sation Advisory Council. Various effective
civil actions. Effective August 1, 2016.
dates.
Sex Trafficking: Chapter 189 adds sex
trafficking to the sexual abuse definition in
the Maltreatment of Minors Act (see Article 15, Section 24). Effective May 29, 2017.
Spousal Maintenance: Chapter 132 allows courts to reduce, suspend, reserve,
or terminate spousal maintenance if the
recipient is cohabiting. The law lists
Drug Sentencing: Chapter 160 repre- factors courts must consider and it bars
sents a compromise agreement that thor- motions brought within one year of a
www.mnbar.org
The full text of new chapters of law can be found
at www.revisor.leg.state.mn.us/laws
BRYAN LAKE is the
MSBA’s lobbyist. He has
worked with members
and staff to promote
and protect the MSBA’s
interests at the state
Capitol since 2009.
July 2016 s Bench&Bar of Minnesota 25
You Get What
You Pay For
Encourage and
reward the behavior
that you want to see.
Who Pays?
The best place to start in determining
“who pays?” is to ask “who benefits?”
Paying for Transition Efforts
Reevaluate how senior lawyers are paid when
transitioning clients and training successors.
Start the Transition
Make sure the successor lawyers
can do the work competently.
The Key
Parties
First identify the
key players and
requirements of the
succession process.
26 Bench&Bar of Minnesota s July 2016
www.mnbar.org
Succession
Planning
Rewarding the Senior Lawyer
Succession planning works best when retiring senior lawyers receive the
proper monetary incentives to transition their clients to other lawyers in the firm.
By Roy S. Ginsburg
S
uccession planning is a hot
topic at many law firms today. That should come as no
surprise, with successful baby
boomer rainmakers starting to
retire in significant numbers. A critical
component of any firm’s succession plan
is to figure out how to retain the firm’s
best clients when the lawyers who developed those relationships ride off into
retirement sunset.
Law firm consultants frequently observe that succession planning works best
when retiring senior lawyers receive the
proper monetary incentives to transition
their clients to other lawyers in the firm.
Put another way, don’t penalize senior
lawyers for slowing down in a manner
that ultimately benefits the entire firm.
But before you can gain a better understanding about how to reward your senior lawyers’ efforts, you must first identify the key players and requirements of
the succession process.
ten much easier said than done). He or
she must then create mini-profiles for
the more significant clients. The profiles
should include:
The Key Parties
The roadmap to successfully transitioning clients from senior lawyers to
junior ones is actually pretty simple. An
examination of the basics illustrates the
importance of factoring money into the
transition process.
First, the soon-to-be retired lawyer
must self-identify (admittedly, this is of-
Start the Transition
Once you know the players, it is time
to for the transition to begin. Two things
must happen.
First, make sure the successor lawyers
can do the work competently. That could
take as little as a few weeks (if the lawyer is very experienced and has worked
with the client before) to as much as a
www.mnbar.org
n an explanation of key
working relationships, noting
whether any of the clients
themselves may change based
on succession; and
n an analysis of the type and
extent of legal work done in the
past and what the client will
likely need in the future.
Next, you determine who in the law
firm is either ready to step to the plate
or can be made ready with proper mentoring and training. The usual suspects
are often lawyers who have already done
work for the clients. It is also a good idea
to get input from the clients; they may
have preferences that you should properly consider.
few years (if the lawyer lacks the needed
skills). In the latter case, the senior lawyer may have to do substantial training/
supervision of work product during the
transition.
Second, make sure the successor lawyers have either already developed “comfort and chemistry” with the clients if
they have worked together in the past or
are capable of developing that over time.
This, too, can take weeks or years. If you
ignore relationship-building—which often involves a certain amount of socializing—you could jeopardize client loyalty.
Both steps in this process have one
major thing in common: It will likely
take extra, non-billable time for the senior lawyer to do both the training/supervision and the schmoozing. Some situations may require a lot of time.
If you ignore
relationship-building—
which often involves
a certain amount of
socializing—you could
jeopardize client loyalty.
July 2016 s Bench&Bar of Minnesota 27
Clients today are more sensitive than ever about paying
for training. But if you can’t bill the client, do firm leaders
then expect the senior lawyer to do the training for free?
And what about the socializing? Who wants to spend
time wining and dining clients when you won’t even
be around to reap future rewards? For many senior
lawyers, institutional loyalty goes only so far.
Paying for Transition Efforts
Here’s where the seemingly simple
process of transitioning clients can fall
victim to the vagaries of human behavior and money. The first issue to consider
is to what extent, if at all, senior lawyers
should receive compensation for nonbillable time.
Clients today are more sensitive than
ever about paying for training. But if you
can’t bill the client, do firm leaders then
expect the senior lawyer to do the training for free? And what about the socializing? Who wants to spend time wining
and dining clients when you won’t even
be around to reap future rewards? For
many senior lawyers, institutional loyalty
goes only so far.
Besides the non-billable time issue,
there’s the even bigger problem of how to
compensate the senior lawyer for traditional billable work during the transition.
Law firms usually pay partners based on
a formula. At most firms, the two most
important components of that formula
are billable productivity and origination.
As junior lawyers do more work for a
senior lawyer’s clients, the senior lawyer’s
billable hours will naturally decline. But
there is danger in taking away too many
If a firm wants to make
sure the senior lawyer
has proper motivation to
follow the client transition
roadmap, where does the
money come from?
28 Bench&Bar of Minnesota s July 2016
hours too soon, unless you make adjustments to the productivity component
of the senior lawyer’s compensation. In
other words, don’t be surprised if your
senior lawyers hoard work when they are
supposed to transition it.
As for origination, most firms reward
lawyers for originating clients in their
compensation formulas; the range is usually 10-25 percent. Who now gets the
origination credit for work during the
transition? Will it all go to the junior lawyer? Should it be shared with the senior
lawyer while he/she is winding down? If
you provide credit to the junior lawyer
too soon, where’s the incentive for the
senior to aid in the transition?
Ways to Pay for Transition Efforts
It should now be apparent that law
firms must reevaluate how they pay senior lawyers when transitioning clients.
Law firm leaders should make sure that
they are rewarding senior lawyers for being good team players when their efforts
are successful. There are several ways to
do that.
One way to pay for transition efforts
is to devise a new compensation formula
for the senior lawyer. You can change the
percentages contained in the formula or
even add new components such as marketing and training. Or you can create a
bonus based on attaining certain measurable milestones. The milestones could
include factors such as revenue and nonbillable hour efforts.
If adjusting formulas and creating bonuses for achieving milestones sounds
too complicated, you can simply track
the hours and pay a mutually agreeable
hourly rate to the senior lawyer. This
would presumably include time for marketing efforts, including socializing, training and mentoring, as well as any other
agreed-upon activity.
Who Pays?
Now comes the $64,000 question: If a
firm wants to make sure the senior lawyer
has proper motivation to follow the client transition roadmap, where does the
money come from? This is where the rubber hits the road.
The best place to start in determining “who pays?” is to ask “who benefits?”
The answer will vary depending upon the
firm’s compensation policy. For firms with
an “eat what you kill” philosophy, the primary beneficiary will be the junior partner inheriting the client. That lawyer will
ultimately be receiving origination credit
for the transitioned client.
One way for the junior lawyer to
“pay” the senior lawyer is to accept less
origination credit for that client’s billings
for an agreed-upon period of time. In
other words, keep paying the senior
lawyer some origination even when the
senior lawyer’s involvement is minimal or
nothing at all. After all, the junior lawyer
is getting a major client handed over on a
silver platter and potentially obtaining a
major revenue stream for years to come,
if the transition goes well. What’s wrong
with having the junior lawyer “pay” for
that stream in the short term?
Those firms that distribute profits
more evenly among the partners would
do well to recognize that all partners
benefit from a successful client transition. Partners should consider taking a
reduced share of profits during the transition. By earmarking those set-aside profits for the senior lawyer, the partnership
stands to benefit from a steady stream of
future profits long after the senior lawyer
is gone.
You Get What You Pay For
It is unrealistic to expect effective client transitions during succession planning if you do not address compensation
issues head on. For clients who have
historically provided significant profits
for all to share, there should be enough
money to spread around during a transition. This will encourage and reward the
behavior that law firm leaders want to see
in their soon-to-be-retired lawyers. s
A practicing lawyer
for more than 30 years,
ROY S. GINSBURG is an
attorney coach and law
firm consultant. He helps
individual lawyers and
law firms with business
development, practice
management, career
development, and succession planning.
[email protected]
www.mnbar.org
Notes Trends
Notes&Trends
Landmarks in the Law
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.
29 Commercial and
Consumer Law
by Fred Miller
30 Criminal Law
by Frederic Bruno
& Samantha Foertsch
33 Employment and
Labor Law
by Marshall H. Tanick
34 Environmental Law
by Vanessa Johnson
35 Federal Practice*
by Josh Jacobson
36 Immigration Law*
by R. Mark Frey
37 Indian Law*
by Jessica Intermill & Peter J. Rademacher
38 Intellectual Property
by Tony Zeuli
& Saalini Sekar
38 Real Property*
by Joseph P. Bottrell
39 Tax*
by Morgan Holcomb
* The online version of this section
contains additional case note content.
See www.mnbenchbar.com
www.mnbar.org
commercial and
consumer law
JUDICIAL LAW
n Extending Article 9’s reach. UCC
§9-609(a) allows a secured party after
default to take possession of the collateral, but under subsection (b) this
must be done without a breach of the
peace. Most secured parties, however,
do not repossess themselves, but hire
experienced persons to do the repossession. If such a third party breaches the
peace, is that party liable? The answer
in Minnesota is yes, even though the
statute refers to a “secured party’s right”
to take possession of collateral and a repossession agency is not a secured party,
because the agency is acting on behalf
of the secured party and this application of the law is necessary to prevent
abuse and to discourage illegal conduct.
Nelson v. BMW Financial Services NA,
LLC, 88 U.C.C. Rep. Serv. 2d 417, 2015
WL 8328073 (D. Minn. 2015).
1983) (upholding tribal application of
repossession statute to non-Indian that
entered onto reservation) and Ware v.
Moe, No. Civ. 03-2054 ADM/SJM, 2004
WL 848204 (D. Minn. 2004) (discussing
pleading requirements for §1983 claim of
liability for state action).
UCC §9-609 does not define “breach
of the peace,” leaving the matter for
continuing development by the courts.
For a discussion, see McRobert, “Defining ‘Breach of the Peace’ in Self-Help
Repossessions,” 87 Washington L. Rev.
569 (2012).
n Getting it right. A decade ago the
New York Court of Appeals, in Regatos
v. North Fork Bank, 838 N.E. 2d 629, 57
U.C.C. Rep. Serv. 2d 791 (N.Y. 2005),
had to rule on whether the one-year
statute of repose in UCC §4A-505,
which precludes a customer from raising
a problem with a funds transfer from
the customer’s account more than one
year after the customer received notice
of it, could be reduced by agreement to
n Observation. The case implies that
less than a year—in the case, to 15 days.
the secured party also is liable for agency The court looked at §4A-204, which
action that breaches the peace. That is
limits a customer’s loss to interest and
made clear by official comment 3 to §9not the amount of the funds transfer
609: “…courts should hold the secured
if the customer does not notify the
party responsible for the actions of others bank of a problem with a funds transfer
taken on the secured party’s behalf, inwithin a reasonable time not exceeding
cluding independent contractors engaged 90 days after the account was debited,
by the secured party to take possession
and disallows variation by agreement,
of collateral.” Moreover, there may be
for guidance. The court also thought
liability in bankruptcy beyond the UCC. invalidating the attempted variation by
See, e.g., Johnson v. Credit Acceptance
agreement of shortening the time limit
Corp., 165 F. Supp. 2d 923 (D. Minn.
in §4A-505 would prompt banks to
2001). And perhaps under other law. See, adopt and use commercially reasonable
e.g., Buzzell v. Citizens Automobile Finance, security procedures, which had not been
Inc., Remarketing Solutions, LLC, and Pro- complied with in the case.
fessional Recovery Services & Collections,
There are several problems with
Civ. No. 10-2046 (RHK/FLN) (D. Minn. the court’s analysis. First, §4A-501(a)
2011) (Fair Debit Collection Practices
provides a general rule that the rights
Act). See also Babbit Ford, Inc., v. Navajo and obligations of a party to a funds
Indian Tribe, No. 83-610 (U.S. Sup. Ct.
transfer may be varied by agreement,
July 2016 s Bench&Bar of Minnesota 29
Notes&Trends
unless Article 4A otherwise provides.
The Article does so provide in a number
of situations, including in §4A-204, and
in §4A-202(f), but not in §4A-505. One
can assume, therefore, that the Legislature knew what it was doing. Second,
while the policy justification of encouraging use of commercially reasonable
security procedures is obviously one of
Article 4A’s goals, the policy behind
the lack of restriction on agreement in
§4A-505 can be attributed to the equal
goal of reducing the time to prompt
recognition of improper transfers before
too much harm to the overall system
can occur due to the problem not being
brought to the attention of the parties.
Thus, in essence, the court substituted
its more narrow policy for the Legislature’s broader policy.
More recently courts have read Article 4A as intended. In Felix d/b/a Han’s
Laser Technology Co. v. Prosperity Bank,
2015 Tex. App. LEXIS 12773 (Tex.
Ct. App. 2015), the deposit agreement
required “prompt notification” within
60 days of when the monthly statements
were made available. The customer ran
past the 60 day agreement limit and,
while there were other issues in the case,
the bank was able to obtain a summary
judgment and thus the opinion supports the enforceability of a contractual
cutdown for reporting unauthorized wire
transfers.
Interestingly, the Minnesota Court
of Appeals came to the same conclusion
as the Texas court more than a decade
previously in Steffes v. Heritage Bank NA
Willmar, 202 Minn. App. LEXIS 737,
48 U.C.C. Rep. Serv. 2d 287 (Minn.
Ct. App. 2002) (involving improper
disbursements from an account by wire
transfer, and when the customer flunked
the 30-day limitation period in the
account agreement, the court enforced
that limitation). See also Priority Staffing, Inc. v. Regions Bank, 2013 U.S. Dist.
LEXIS 141436 (W.D. La. 2013) (enforcing 30 day limit).
– Fred Miller
Retired G.L. Cross Research
Professor, University of Oklahoma
[email protected]
CRIMINAL LAW
JUDICIAL LAW
n Implied consent: No jurisdiction to
consider untimely petition, but future
use of revocation to enhance criminal
charges may be challenged. In 2006,
appellant was charged with fourth-degree DWI, received a license revocation
notice, and did not file a petition for
30 Bench&Bar of Minnesota s July 2016
judicial review. His license was revoked
in 2007 for that offense. In 2008, he was
charged with third-degree DWI, again
received a license revocation notice, did
not file a petition for judicial review, and
his license was again revoked. While
both DWI charges were pending, the
district court found him mentally incompetent to stand trial, and the charges
were dismissed. In 2012, appellant was
charged with felony DWI, felony DWI
test refusal, and gross misdemeanor
driving after cancellation. His 2007 and
2008 license revocations were used to
enhance the DWI charges. In 2015,
he filed a petition for judicial review of
the 2007 and 2008 license revocations,
arguing that his mental incompetency in
the related criminal cases should result
in the rescission of the driver’s license
revocations. The district court found the
petition untimely, and concluded that it
was jurisdictionally barred from considering the petition.
Appellant argued that all revocation
proceedings must satisfy the due process
protections required in criminal prosecutions, because they may be used to enhance criminal charges. The Minnesota
courts have rejected this argument. He
also argues that the use of the revocations as criminal enhancements violates
his due process rights because he was
mentally incompetent during the 30-day
period in which he could request judicial
review of the revocations. The courts
have held that this 30-day time period is
jurisdictional. Although he did receive a
notice and order of revocation, appellant
argues that his mental incompetence
prevented him from receiving adequate
notice to seek judicial review. Actual
notice is not required in an implied
consent proceeding, so long as “notice of
the opportunity to seek judicial review
of a revocation is ‘reasonably calculated’
to reach the driver.” The state satisfied
this requirement, so appellant’s due
process rights were not violated. Because
appellant received notice and did not
file a petition within 30 days, the district
court did not have jurisdiction to hear
his petition.
Without expressing an opinion as to
the outcome of the analysis, the court
of appeals notes that district court must
scrutinize whether the enhancement of
criminal charges based on revocations
that occurred when a petitioner was
mentally incompetent to seek judicial
review constitutes a violation of due
process. This challenge, however, must
be raised in the criminal, not implied
consent, proceedings. David John
Anderson v. Commissioner of Public
Safety, Ct. App. 5/9/2016.
n DWI: Totality of circumstances
properly evaluated in determining
whether stop supported by reasonable, articulable suspicion. Appellant
was charged with second-degree DWI
after being pulled over for swerving
and weaving over the centerline of the
road when making a right-hand turn.
Appellant sought to dismiss the charges,
arguing there was no valid basis for
the stop. The district court denied the
motion, and appellant was found guilty
after a stipulated facts trial. The court
of appeals reversed, finding the stop of
appellant’s vehicle invalid and finding
that the right-hand turn statute (requiring that a right turn be made “as close
as practicable to the right-hand curb
or edge of the roadway,” Minn. Stat.
§169.19, subd. 1(a)) was unconstitutionally vague unless narrowly applied to the
facts of the case.
Held, the court of appeals erred
by addressing the constitutionality of
the right-hand turn statute, as neither
party raised the issue in the district
court or an appeal. The district court
also properly assessed the totality of the
circumstances of the stop, and correctly
concluded that the stop was supported
by reasonable, articulable suspicion.
The stop was supported by the following circumstances: (1) the squad video
supported the officer’s assertion that
appellant’s right turn was not as close
as practicable to the right-hand curb
or edge of the roadway, (2) the squad
video showed appellant’s car drifting in
its lane, (3) the events occurred close
to bar closing time, (4) appellant was
leaving an area with bars, and (5) the
officer’s training and experience. The
second circumstance alone may justify a
stop, and the remaining circumstances
fortified the basis for the stop in this
case. The court of appeals is reversed.
State v. Tyler Thomas Devries Morse,
Sup. Ct. 5/11/2016.
n DWI: Felony CVO is predicate felony
for first-degree DWI. Appellant was
convicted of felony criminal vehicular
operation (CVO) for causing substantial
bodily harm to another as a result of
operating a motor vehicle while under
the influence of alcohol in 1998. He was
charged with two counts of first-degree
DWI in 2015, which were enhanced
based on appellant’s 1998 conviction.
Appellant argues that his prior CVO
conviction cannot be used to enhance
his current DWI offense because the
1996 version of the CVO statute, in
effect at the time of prior offense, is not
listed as a predicate felony in the 2014
version of the first-degree DWI statute,
www.mnbar.org
Notes&Trends
in effect at the time of his current DWI
offense.
The court of appeals finds that
the 2014 first-degree DWI statute is
ambiguous as to whether the 1996 CVO
statute is a predicate offense, because
it is subject to more than one reasonable interpretation. The court looks to
changes made to the first-degree statute
and legislative intent stated in the 2012
session law to resolve the ambiguity. A
number of changes have been made to
the CVO and the first-degree DWI statutes. The CVO statute was reorganized
in 2007, and the Legislature attempted
to track the changes by also amending
the first-degree DWI statute in 2007.
The 2007 version of the first-degree
DWI statute referenced only the newly
organized version of the CVO statute,
and not the prior version. So, in 2012,
the first-degree DWI statute was again
amended to clarify the cross-referencing
change made in 2007 relating to the
CVO statute. The Legislature stated
that its “intent has always been that
[CVO] convictions under the pre-2007
law and post-2007 law be used for enhancing [DWI] penalties…” The CVO
statute was renumbered again in 2014,
and the first-degree statute was again
amended to track this change, making it
clear that the Legislature still intended
that pre-2007 CVO convictions would
constitute predicate felonies under the
first-degree DWI statute.
Held, a prior felony CVO is a predicate offense under the first-degree DWI
statute. As such, there was no manifest
injustice in appellant’s guilty plea. State
v. Ralph Joseph Boecker, Ct. App.
5/23/2016.
n Sentencing: Rules of evidence apply to Blakely court trials. Appellant
entered a straight plea to conspiracy to
commit a first-degree controlled substance crime. Prior to his plea, the state
notified appellant of its intention to seek
an upward durational departure based
on three aggravating factors. At the
plea hearing, appellant waived his right
under Blakely v. Washington, 542 U.S.
296 (2004), to have a jury determine
whether an upward durational departure
was justified. At the Blakely court trial,
the district court did not apply the rules
of evidence, allowing the state to present
its entire case through a single witness,
one of the FBI case agents. The district
court found all three aggravating factors
were proved beyond a reasonable doubt,
and imposed a greater than double upward durational departure. The court of
appeals found that the rules of evidence
apply only at a Blakely jury trial.
www.mnbar.org
Rule 1101(b)(3) of the Minnesota
Rules of Evidence provides that the rules
do not apply at sentencing proceedings. A distinction was drawn in State
v. Rodriguez, 754 N.W.2d 672 (Minn.
2008), between “sentencing” proceedings, and a “jury sentencing trial.” The
Supreme Court held that the rules of
evidence must be applied in the latter,
because they are not listed as an exception in Rule 1101(b). The Court clarifies
that Rodriquez was not intended to limit
the application of the rules of evidence
to only Blakely jury trials, noting that
there is a substantive difference between
an ordinary sentencing hearing and a
sentencing trial where adjudicatory facts
are determined. At a sentencing trial,
aggravating sentencing factors must be
proved beyond a reasonable doubt, as
during the adjudication-of-guilt phase of
the proceedings. During that phase, even
if a jury is waived, the rules of evidence
apply nonetheless to the bench trial.
Held, the rules of evidence apply to
all Blakely trials, whether before a judge
or a jury. However, because appellant
did not object to the non-application of
the rules of evidence before the district
court, plain error analysis applies. Prior
to this case, the Court had not clearly
required the district courts to apply
the rules of evidence in a Blakely court
trial. Thus, the district court’s failure to
apply the rules was not clear or obvious
error. Although the district court erred,
the error was not plain. State v. Julian
Sanchez-Sanchez, Sup. Ct. 5/18/2016.
When a probation revocation
proceeding results in the imposition of
intermediate sanctions, rather than the
revocation of probation and execution of a sentence, the district court
must determine whether there is clear
and convincing evidence that a condition of probation has been violated. It
is well established that polygraph test
results are not admissible in criminal or
civil trials, because they are not scientifically reliable. However, Minn. Stat.
§609.3456 allows a district court to
order an offender to submit to polygraph
examinations as a condition of probation
when the offender has received a stay of
imposition or execution of sentence.
Finding persuasive a case from the
Virginia Supreme Court considering
this issue, Turner v. Virginia, 685 S.E.2d
665 (Vir. 2009), and other jurisdictions
which follow the same rule, the court
of appeals holds that it is improper to
admit polygraph test results as substantive evidence of a violation in probation
revocation proceedings, because such
evidence is unreliable and, therefore,
cannot be clear and convincing evidence
of a probation violation. The court is
careful, however, to make clear that it is
not imposing any restrictions on the use
of polygraphs as a tool in law enforcement or in the treatment, therapy,
monitoring, or evaluation of offenders,
and evidence that an offender violated
a condition requiring them to submit to
polygraph testing is still admissible in a
probation violation proceeding, while the
results of any polygraph test are not.
n Probation violation: Polygraph tests
Here, the references to appellant’s
inadmissible as evidence of probation
polygraph testing alluded to the fact that
he failed the tests, and, therefore, the
violation. In February 2010, appellant
was placed on probation pursuant to a
test results were admitted as substantive
stay of adjudication following his plea
evidence of his failure to complete treatof guilty to third-degree criminal sexual ment (a violation of his probation). The
conduct. His probation conditions indistrict court abused its discretion by
cluded the successful completion of sex
allowing references to appellant’s failed
offender treatment programming and
polygraph tests at his probation revocasubmission to polygraph examinations.
tion hearing. However, a new hearing is
In February 2015, a probation violanot required, because the district court’s
finding that appellant violated his
tion report alleged appellant failed to
complete sex offender treatment. At the probation was not premised on his failed
probation revocation hearing, appellant’s polygraphs, but, instead, on his failure to
therapist testified that appellant failed
complete sex offender treatment, which
multiple polygraphs and was terminated was for myriad reasons, not just the
failed polygraphs. State v. Chad Michael
from the program for failing to follow
through with her recommendations.
Nowacki, Ct. App. 5/23/2016.
Appellant objected to the reference to
the polygraph examinations, but the
n Search and seizure, dog sniff: No
district court overruled the objections.
expectation of privacy in common areas
of secured, multi-unit condo buildng;
The district court found that appellant
violated probation by failing to complete area immediately outside of condo
outpatient treatment, revoked his stay
unit is not curtilage. Police received
a tip that appellant and his girlfriend
of adjudication, entered a judgment of
were trafficking in large quantities of
conviction, and imposed a sentence of
marijuana, and determined the two
36 months, with all but 30 days stayed.
July 2016 s Bench&Bar of Minnesota 31
Notes&Trends
were living in a multi-unit condominium
building and that the two had been
arrested together in 2011 for fifth-degree
possession. Appellant’s girlfriend rented
the condo unit from appellant’s mother,
the owner of the unit. Police could
access the interior of the building using
a key stored inside of a locked keybox,
to which all officers in the department
had a key, previously provided by
the property management company.
An officer and trained detection dog
entered the building using the key from
inside the locked keybox, and went to
appellant and his girlfriend’s unit on
the third floor. The dog was directed to
sniff immediately outside of the door,
and alerted in a way that indicated
controlled substances were inside the
unit. A warrant was obtained later that
day based on information from the
confidential informant, appellant and
his girlfriend’s arrest records, and the
dog sniff. During a search of the unit
conducted pursuant to the warrant,
police located large quantities of
marijuana, oxycodone tablets, firearms,
and bullet-resistant vests. Appellant was
charged with various drug and firearm
offenses. He moved to suppress the
evidence found during the search of his
condo unit, arguing that the warrantless
entry into the building was unlawful and
that the dog sniff was not justified by
probable cause. The district court denied
appellant’s motion, and appellant was
found guilty after a stipulated facts trial.
Held, appellant does not have a right
to challenge the warrantless entry into
the condo building, because he did not
have a legitimate expectation of privacy
in the common areas of the building.
To have a legitimate expectation of
privacy, a defendant must have exhibited
an actual subjective expectation of
privacy in a particular place, and
that expectation of privacy must be
reasonable. The court of appeals focuses
on the second prong of this analysis,
finding that any subjective expectation
of privacy appellant may have held in
the common areas of the condo building
were not reasonable. This issue has not
been addressed by the United States or
Minnesota Supreme Courts, but State v.
Milton, 821 N.W.2d 780 (Minn. 2012)
(holding that “a resident of a multifamily
residence has a ‘diminished’ expectation
of privacy in the common areas” of a
multifamily residential duplex building)
and the vast majority of federal circuit
court opinions support the conclusion
that a resident of a secured, multi-unit
residential building does not have a
legitimate expectation of privacy in the
common areas of the building and, thus,
32 Bench&Bar of Minnesota s July 2016
may not challenge an officer’s warrantless
entry into the building.
Next, assuming appellant did have
a legitimate expectation of privacy, the
court finds that the warrantless entry
was nonetheless justified based on
the property management company’s
consent. A property manager may
consent to a search of common areas of
a multi-unit residential building that are
under the property manager’s control.
Additionally, whether the property
management company had actual
authority to consent to the warrantless
entry, the company had apparent
authority to do so, which also justifies
the warrantless entry.
Under Florida v. Jardines, 133 S.Ct.
1409 (2013), a dog sniff conducted
within the curtilage of a home is
a search for purposes of the 4th
Amendment. Here, however, the court
holds that the area immediately outside
of the door of appellant’s multi-unit
residential condominium building is
not the curtilage of the unit, because
appellant’s use of the area was limited
by the rules and regulations of the
building, he did not have exclusive use
of the area, the area was not enclosed
in any way, and the area was fully
visible to all persons who might walk
by appellant’s door. Because the area
outside of appellant’s condo unit door
was not within the curtilage of his home,
appellant cannot establish that the dog
sniff conducted in that area was a search
for purposes of the 4th Amendment.
Under the Minnesota Constitution,
whether a dog sniff is to be analyzed
under a probable cause or reasonable
suspicion standard depends on the facts
of each particular case, balancing the
nature and significance of the intrusion
on the individual’s privacy interests
against the gravity of the public concerns that a dog sniff serves and the
degree to which the conduct at issue
advances the public interest. Appellant
did not have a strong privacy interest in
the common hallway outside of his unit.
The public concerns served by the dog
sniff, investigating and prosecuting drug
offenses, are significant. A dog sniff is
also a valid investigative tool to combat
drug crime. As in State v. Davis, 732
N.W.2d 173 (Minn. 2007), a balancing
of these factors weighs in favor of applying a reasonable, articulable suspicion
standard to the dog sniff conducted in
this case. The court concludes by affirming the district court’s finding that the
dog sniff was supported by a reasonable,
articulable suspicion of criminal activity.
State v. Stuart Donald Luhm, Ct. App.
5/31/2016.
n Burglary: Minn. Stat. §609.582 does
not allow district court to enter convictions or impose sentences on mutiple
counts of burglary arising from single
course of conduct. After a jury trial,
appellant was found guilty of first-degree
burglary (assault) and first-degree
burglary (dangerous weapon). At his sentencing, the district court entered convictions on both counts and sentenced him
to 52 months on each count, to be served
concurrently. On appeal, appellant
argues that his convictions are improper,
because first-degree burglary (dangerous
weapon) is an included offense of firstdegree burglary (assault), and that the
district court erred in imposing sentences
for each conviction, because they arose
from a single course of conduct.
Minn. Stat. §609.04 permits the
conviction of either the crime charged
or an included offense, but not both.
An included offense is a crime necessarily proved if the crime charged were
proved. First-degree burglary (dangerous
weapon) and first-degree burglary (assault) each require proof of an element
that the other does not, so first-degree
burglary (dangerous weapon) is not a
lesser-included offense of first-degree
burglary (assault). However, Minn. Stat.
§609.04 also bars multiple convictions
under different sections of a statute for
acts committed during a single behavioral incident, and, if a person’s conduct
constitutes more than one offense under
the law, the person may be punished for
only one of the offenses, unless a statutory exception applies.
The state argued only that an
exception applies, not that appellant’s
convictions arose from a single course of
conduct. Minn. Stat §609.585 provides
that “a prosecution for or conviction of
the crime of burglary is not a bar to conviction of or punishment for any other
crime committed on entering or while
in the building entered.” The court of
appeals holds that “any other crime” in
Minn. Stat. §609.585 does not include
another burglary crime, based on the
plain language of the statute, which is
supported by a similar interpretation
suggested by prior case law. Thus, Minn.
Stat. §609.585 does not authorize the
entry of convictions or imposition of
sentences for multiple counts of burglary
that arose from a single course of conduct. State v. Ian Christopher Mitchell,
Ct. App. 5/31/2016.
– Frederic Bruno
Bruno Law
[email protected]
– Samantha Foertsch
Bruno Law
[email protected]
www.mnbar.org
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2­ 016 U.S. App. LEXIS 8788 (Minn.
App. 2016) (unpublished).
n Labor law; arbitration award vacated.
A rare overturning of an arbitration
award in a labor union dispute with
management concerning work shirts for
nurses was upheld by the 8th Circuit.
It affirmed a ruling by U.S. District
Court Judge David Doty in vacating an
award calling for nurses in a collective
bargaining agreement to split future
weekend shifts on grounds that the
arbitrator lacked authority to make a
prospective award. Minn. Nurses Ass’n.
v. North Mem. Health Care, ­2016 U.S.
App. LEXIS 8793 (Minn. App. 2016)
(unpublished).
n Defamation; privilege for evaluating
performance. A medical doctor’s lawsuit
for defamation and other claims against
the Mayo Clinic arising out of his forced
resignation upon completion of an
www.mnbar.org
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out of debtors.”
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COTTRELL LAW FIRM PA
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July 2016 s Bench&Bar of Minnesota 33
Notes&Trends
unfavorable evaluation period was dismissed. Affirming a ruling by Judge Doty,
the 8th Circuit Court of Appeals held
that negative statements made about the
doctor’s work were protected by a qualified privilege because they were made
in evaluating his performance, and this
privilege was not overcome by malice
or ill will. Elkharwily v. Mayo Holding
Company, ­2016 U.S. App. LEXIS 9234
(Minn. App. 2016) (unpublished).
n Arbitration; waiver by litigation. An
employer who litigated an employee’s
wrongful termination and breach of
contract for eight months before seeking to compel arbitration waived the
arbitration clause in the employment
contract. Upholding a ruling of U.S.
District Court Judge Paul Magnuson in
Minnesota, the 8th Circuit held that
arbitration would now be prejudicial to
the employee. Messina v. North Cent.
Distrib., 2016 U.S. App. LEXIS 8562
(Minn. App. 2016) (unpublished).
n Labor law; unlicensed instructors not
in union. Instructors in a school district’s
pre-kindergarten (pre-K) program are
not within the collective bargaining unit
negotiating for teachers. Upholding a
decision by the Bureau of Mediation
Services, the Minnesota Court of Appeals held that because licensure is not
required by federal or state laws or district policy, pre-K personnel cannot be
in the union representing teachers. Ind.
Sch. Dist. No. 622 v. North St. Paul –
Maplewood – Oakdale Educ. Ass’n.,
­2016 U.S. App. LEXIS 37 (Minn. App.
2016) (unpublished).
n Workplace defamation; principal’s
appeal reversed. An ousted principal in
the Minneapolis Public School system
was entitled to pursue a defamation
claim arising out of a letter distributed
by the district to parents of students
regarding his discharge. The appellate
court reversed a dismissal of the lawsuit
on grounds that there was evidence that
the school district knowingly circulated
false information about the termination, warranting remand for trial, while
upholding dismissal by the trial court of
a claimed violation of the Data Practices
Act for disclosing personal data. Exner
v. Minneapolis Public Schools, 2016
Minn. App. LEXIS 468 (Minn. App.
2016) (unpublished).
sation benefits. The court of appeals reversed a decision by an Unemployment
Law Judge (ULJ) with the Department
of Employment & Economic Development (DEED) that an employee was not
eligible for benefits because she “quit”
work under Minn. Stat. §268.098, subd.
2(a). Posey v. Securitas Sec. Services,
USA, Inc., 2016 Minn. App. LEXIS 33
(Minn. App. 2016) (unpublished).
Employee advocates and labor unions
applauded the expansion, while business
and management groups opposed it and
said it may curtail employment hiring or
result in reduction of work schedules or
salaries for current employees.
– Marshall H. Tanick
Hellmuth & Johnson, PLLC
[email protected]
n Unemployment compensation; “single incident” doctrine. Another denial
of benefits by DEED was reversed on behalf of a technician at a veterinary clinic
who was fired for suggesting that a client’s dog need not undergo a particular
type of vaccination. The appellate court
held that under the “single incident”
doctrine, the conduct was not so heinous
to constitute disqualifying “misconduct”
because the vaccination was not legally required. Nash v. Douglas Animal
Hosp., Inc., 2016 Minn. App. LEXIS 507
(Minn. App. 2016) (unpublished).
ENVIRONMENTAL LAW
LEGISLATION
n FLSA expansion. The Obama administration has expanded eligibility for
overtime under the Fair Labor Standards
Act (FLSA). New rules promulgated by
the Department of Labor are expected to
affect about 4.2 million salaried workers who have been ineligible for extra
compensation, at the rate of 1-1/2 times
their normal pay for working in excess of
40 hours per week. The exemption from
overtime has applied to employees with
n Unemployment compensation;
some managerial responsibilities earning
eligibility dispute inability to work. An more than $23,660 annual or $440 per
employee unable to perform a job assign- week. The new regulations lift the ceiling
ment due to a temporary family crisis
to $46,476 or $913 weekly, which should
was entitled to unemployment compen- cover about 35 percent of the work force.
34 Bench&Bar of Minnesota s July 2016
JUDICIAL LAW
n U.S. Supreme Court Upholds 8th Circuit decision on reviewability of Army
Corps of Engineers action under Clean
Water Act. In a unanimous decision,
the U.S. Supreme Court ruled that an
approved jurisdictional determination
(JD) by the United States Army Corps
of Engineers (Corps) is a final agency
action subject to judicial review under
the Administrative Procedures Act. An
approved JD (as opposed to a “preliminary” JD) is a decision by the Corps on
n Unemployment compensation; two
whether or not a landowner’s property
denials affirmed. But two disqualificacontains “waters of the United States”
tion decisions by ALJs were upheld.
into which discharges would be reguAn office employee who constantly
lated by the Clean Water Act.
came to work late, left early, and often
The significance of this ruling is
worked from home, despite requirethat a landowner may appeal a JD
ments to be in the office, was denied
before having to go through the long
benefits. Her explanation that she
and expensive process of applying for a
wanted to avoid traffic was unavailing to discharge permit under the Clean Water
negate a determination of “misconduct.” Act. There is speculation, however, that
Shaw v. First Advantage Background
this ruling may make the Corps less willServs., 2016 Minn. App. LEXIS 523
ing to issue JDs, as the Corps has clearly
(Minn. App. 2016) (unpublished). A
indicated a preference for the permit
racist comment made by a superior was
application process in this case. This
insufficient to allow benefits to an emdecision to uphold the 8th Circuit ruling
ployee who quit. Because the employer
resolves its split with the 5th Circuit,
took action to prevent any more racist
which had ruled in 2014 that a JD was
comments and none was made, the em- not a final agency action subject to
ployee lacked “good reason” caused by
judicial review. Belle Co., L.L.C. v. U.S.
the employer to quit. Yusuf v. Masterson Army Corps of Eng’rs, 761 F.3d 383 (5th
Pers., Inc., 2016 Minn. App. LEXIS 35
Cir. 2014). U.S. Army Corps of Eng’rs
(Minn. App. 2016) (unpublished).
v. Hawkes Co., Inc. et al., No. 15-290,
2016 WL 3041052 (U.S. 5/31/2016).
LEGISLATIVE ACTION
n Congress reforms primary U.S.
chemical safety law. For the first time in
40 years, Congress has approved a significant overhaul of the Toxic Substances
Control Act (TSCA), with a vote by the
House on 5/24/2016 and the Senate on
6/7/2016 to approve the Frank R. Lautenberg Chemical Safety for the 21st Century
Act. TSCA reform has been long in coming, after the law suffered much criticism
for being ineffectual and for having been
surpassed by more updated legislation
like the European Union’s Registration,
Evaluation, Authorization, and Restriction of Chemicals (REACH) program.
www.mnbar.org
Notes&Trends
TSCA was designed to protect
human health and the environment
by requiring testing and necessary-use
restrictions of certain chemical substances in commercial goods. However,
nearly 65,000 chemicals already on the
market were not subject to EPA review
under TSCA. Chemicals not grandfathered in were only subject to regulation
that was considered “least burdensome”
to industry. EPA’s criteria have now
been amended by the new law, and the
new standard requires assurance of no
“unreasonable risk of injury to health
or the environment.” Significantly, EPA
must regulate chemicals without regard
to cost or benefits if an unreasonable
risk is found.
The new legislation requires a new
screening requirement for existing chemicals. EPA will be required to determine
which chemicals require further evaluation and must initiate risk evaluations of
at least 20 high priority chemicals within
three and a half years. If the risk evaluation results in a finding of unreasonable
risk, EPA must propose regulations to
reduce such risk within two years. New
chemicals will be subject to a new review
procedure that requires EPA to make a
determination of risk prior to any commercial production. Chemical manufacturers will face increased fees to cover
up to 25 percent of the new chemical
notification program cost for EPA.
For both existing and new chemicals,
EPA will have new authority to issue orders requiring testing to be performed by
manufacturers. Under TSCA previously,
EPA would have had to go through a
lengthy rulemaking process to require
such testing.
The TSCA reform contains state
preemption provisions that raised
objections by many states, which had
regulated to make up for what TSCA
previously lacked. Minnesota Pollution
Control Agency Commissioner John
Linc Stine joined state environmental
officials from Connecticut, New York,
New Hampshire, Vermont and Washington in calling on Congress to reconsider
the broad preemption language of the
Act. The reform does grandfather in any
state statutory or regulatory action taken
prior to 4/22/2016, but even so there are
exceptions when those laws conflict. For
example, any existing or future state law
that conflicts with a final EPA decision
with respect to the safety or regulation
of a particular chemical is preempted.
But states may seek waivers for federal
preemption.
President Obama has already indicated his approval of the Lautenberg Act
and is expected to sign it into law soon.
www.mnbar.org
ADMINISTRATIVE ACTION
n EPA proposes update to NPDES
regulations that would tighten oversight
of states CWA permitting. In a proposed
rule with a comment period ending on
7/18/2016, EPA is suggesting several “key
fixes” to the Clean Water Act’s (CWA)
National Pollutant Discharge Elimination System. One of these fixes would allow EPA to force a state to stop extending an expired NPDES permit. States
often extend an expired NPDES permit
for many years beyond the five-year term
for such permits provided by the CWA.
Under the proposed rule, EPA would be
able to object to the continuance of an
expired NPDES permit. The state would
then have 90 days to file a revised permit
or EPA would be able to issue a new
permit instead. EPA is seeking comment
on whether it would be appropriate to
exercise this power after either a twoyear or a five-year period following the
initial five-year permit term.
The NPDES proposal also includes
a number of changes to permit applications and implementing rules. EPA says
these changes will have only minor
practical effects. One such change would
require new dischargers to submit data
for confirmation of permit application
estimates no later than 18 months after
they begin operation—six months shorter than currently required. In addition,
POTWs are no longer exempt from such
requirements. The proposed rule also
addresses transparency requirements by
allowing states to give notice of permit
actions online rather than in a newspaper. The rule also proposes expanding notice requirements beyond major
permit actions to all NPDES permits.
– Vanessa Johnson
Parkway Law LLC
[email protected]
that “any suggestion” of prejudice should
result in the trial court not doing so.
Dietz v. Bouldin, ___ S. Ct. ___ (2016).
n Favorable ruling on the merits not
required for defendant to recover attorney’s fees under Title VII. Reversing
the 8th Circuit, the Supreme Court held
that a favorable ruling on the merits is
not a necessary predicate to a finding
that a Title VII defendant is a prevailing
party eligible for an award of attorney’s
fees. CRST Van Expedited, Inc. v.
EEOC, 136 S. Ct. 1642 (2016).
n Class certification reversed; absence
of predominance. Exercising jurisdiction
under 28 U.S.C. §1292(e) and Fed. R.
Civ. P. 23(f), the 8th Circuit reversed an
order by Judge Frank that had certified a
class in an environmental action, finding
that Judge Frank had abused his discretion by limiting consideration of individualized issues among class members, and
that he had “essentially manufactured” a
class that would meet the predominance
requirements of Fed. R. Civ. P. 23(b)(3).
The 8th Circuit also rejected certification of a Fed. R. Civ. P. 23(b)(2) class,
finding an absence of required “cohesiveness.” Ebert v. General Mills, Inc., ___
F.3d ___ (8th Cir. 5/20/2016).
n Waiver of right to arbitration; delay
and prejudice. Affirming an order by
Judge Magnuson, the 8th Circuit held
that the defendant had waived its right
to compel arbitration when it waited
more than eight months after the action
was commenced, and more than one
month after its motion to transfer venue
was denied, before moving to compel
arbitration, and also found that the
plaintiff had been prejudiced by that
delay. Messina v. North Central Distrib.,
Inc., ___ F.3d ___ (8th Cir. 2016).
FEDERAL PRACTICE
n Fed. R. Civ. P. 15(c)(1)(C); relation
back; John Doe defendants. AcknowlJUDICIAL LAW
edging the absence of a controlling
n Article III standing; “concreteness.”
authority from the 8th Circuit, Judge
The United States Supreme Court reMontgomery joined the “vast majority of
versed and remanded a standing decision Circuit Courts” and held that “a plainby the 9th Circuit in an FCRA action,
tiff’s lack of knowledge of the proper
finding that the 9th Circuit had failed
party to be sued” was not a “mistake
to consider the “concreteness” prong of
concerning the party’s identity” for purthe injury-in-fact analysis required for a
poses of Fed. R. Civ. P. 15(c), meaning
plaintiff to establish standing. Spokeo,
that a proposed amendment intended
Inc. v. Robins, 136 S. Ct. 1540 (2016).
to identify John Doe defendants did not
relate back for purposes of the statute of
n Recall of jurors following verdict.
limitations. Heglund v. Aitkin County,
The Supreme Court held that a district
2016 WL 3093381 (D. Minn. 6/1/2016).
court has “limited” inherent power to
rescind a jury discharge order and recall n Unaccepted tender does not moot
a jury for further deliberations after iden- class claims. Defendants in the
tifying an error in the jury’s verdict, but
District of Minnesota continue to fail
July 2016 s Bench&Bar of Minnesota 35
Notes&Trends
in their attempts to avail themselves
of the perceived “back door” identified
by the Supreme Court in CampbellEwald Co. v. Gomez. In a recent
and thorough decision, Judge Kyle
rejected the defendant’s attempt to
moot a putative TCPA class action
by tendering a certified check to the
plaintiff accompanied by an offer to
stipulate to an award of costs and entry
of an injunction. Ung v. Universal
Acceptance Corp., 2016 WL 3136858
(D. Minn. 6/3/2016).
n Motion to vacate default judgment
denied. Judge Frank denied the defendant’s motion to vacate a default
judgment on the grounds of excusable
neglect, finding that while the defendant’s motion was only “moderate[ly]”
delayed when it was brought eight
months after service of the summons
and complaint, and four months after
entry of the default judgment, the defendant offered “no reason” for its neglect,
its conduct suggested that it acted in
“bad faith,” and its liability defense was
“weak.” Core Distrib., Inc. v. Xtreme
Power (USA) Inc., 2016 WL 2733407
(D. Minn. 5/10/2016).
n Prevailing trademark defendant’s
request for attorney’s fees denied.
Judge Nelson denied a prevailing
trademark defendant’s request for
attorney’s fees after two years of
hard-fought litigation, finding that the
plaintiff’s claims were not “groundless
or without merit,” and that the case was
not otherwise “exceptional.” Mountain
Mktg. Group, LLC v. Heimerl &
Lammers, LLC, 2016 WL 2901735
(D. Minn. 5/18/2016).
ADMINISTRATIVE ACTION
n Significant proposed Local Rule
amendment relating to the filing of
documents under seal in civil cases.
The District of Minnesota has published
proposed new Local Rule 5.6, which is
intended to provide a uniform process
for filing motion-related documents under seal in civil cases, to reduce the volume of information filed under seal, and
to ensure that no information is sealed
without the Court’s permission. The proposed rule provides a four-step process to
determine whether information is to be
sealed. The Court is receiving comments
on proposed Local Rule 5.6 through
7/29/2016, and comments may be mailed
to the Court, or submitted by email to
[email protected].
– Josh Jacobson
Law Office of Josh Jacobson
[email protected]
36 Bench&Bar of Minnesota s July 2016
IMMIGRATION LAW
the first degree was categorically a crime
involving moral turpitude (CIMT). The
court also found the IJ was not collaterJUDICIAL LAW
ally estopped from reviewing the issue of
n Conviction under state law may
constitute “aggravated felony” without whether the petitioner’s conviction for
assault was a CIMT since the prior dea connection to interstate commerce.
termination that it was not a CIMT had
Under the Immigration and Nationalnot yet become a valid and final judgity Act (INA), any foreign national
convicted of an “aggravated felony” after ment. “As the BIA noted, nothing in
entering the United States is deportable its order reopening and remanding the
and ineligible for several forms of discre- action precluded the IJ from reconsidering the CIMT issue on remand. See In re
tionary relief. An “aggravated felony” is
Patel, 16 I&N Dec. 600, 601 (BIA 1978)
defined in a series of offenses listed in
(holding that a remand, unless qualiINA §1101(a)(43), whether in violation of federal, state, or foreign law. The fied or limited for a specific purpose, is
effective for the stated purpose and for
United States Supreme Court recently
consideration of any and all matters that
held that a state offense may constitute
the IJ deems appropriate).” Estradaan “aggravated felony” if it contains
every element of a federal crime save one Rodriguez v. Lynch, No. 15-2223, slip
op. (8th Cir. 6/6/2016). http://media.ca8.
requiring a connection to interstate or
foreign commerce. “For obvious reauscourts.gov/opndir/16/06/152223P.pdf
sons, state criminal laws do not include
the jurisdictional elements common
n Citizenship revocation on account
in federal statutes. State legislatures,
of misrepresentation of true name
exercising their plenary police powers,
and identity. The 8th Circuit Court of
are not limited to Congress’s enumerated Appeals held the U.S. District Court
(District of Nebraska) did not commit
powers; and so States have no reason
to tie their substantive offenses to those
error when it cancelled the petitioner’s
grants of authority. See, e.g., United States naturalization and revoked his citizenv. Lopez, 514 U. S. 549, 567 (1995). In
ship following the government’s proof
that he procured his naturalization by
particular, state crimes do not contain
interstate commerce elements because a misrepresenting or concealing informaState does not need such a jurisdictional tion about his true name and identity. It
hook.” Torres v. Lynch, 578 U.S. ___,
further found that the petitioner could
___ (2016). http://www.supremecourt.gov/ not use the proceeding to collaterally
opinions/15pdf/14-1096_5hdk.pdf
attack a 1995 deportation order since he
had failed to exhaust his administrative
n No nexus between group memberremedies related to that order. United
ship and persecution suffered. The 8th
States v. Hirani, No. 15-1583, slip op.
Circuit Court of Appeals denied the
(8th Cir. 5/31/2016). http://media.ca8.
petition for review, holding that, even
uscourts.gov/opndir/16/05/151583P.pdf
if one accepts the petitioner’s proposed
groups as cognizable, particular social
n Probate courts may make special
groups (PSGs) [(1) male, gang-aged fam- immigrant juvenile findings in guardianily members of murdered gang members, ship proceedings. The Minnesota Court
(2) male, gang-aged family members of
of Appeals held that a probate court is
his cousin, Oscar, and (3) male, gangauthorized to make special immigrant
aged members of the Institute], he none- juvenile (SIJ) findings in a guardiantheless failed to show a nexus between
ship proceeding pursuant to Minn. Stat.
his membership in those groups and
§524.5-310(a). Furthermore, a probate
the persecution he suffered. The court
court abuses its discretion by declining
further found that the BIA did not com- to consider a request for special immimit error when rejecting the petitioner’s grant juvenile findings in a guardianship
Convention Against Torture (CAT)
proceeding when the record supports
claim, given his failure to show the govthe appointment of a guardian and
ernment of El Salvador participates in or contains evidence as to each potential
acquiesces to torture. Aguinada-Lopez
special immigrant juvenile finding. In
v. Lynch, No. 15-1095, slip op. (8th Cir.
re Guardianship of Chimborazo Gua6/7/2016). http://media.ca8.uscourts.gov/
man, Ct. App. 5/16/2016. http://mn.gov/
opndir/16/06/151095P.pdf
law-library-stat/archive/ctappub/2016/
opa151412-051616.pdf
n Assault in the first degree is a crime
involving moral turpitude. The 8th
ADMINISTRATIVE ACTION
Circuit Court of Appeals denied the pe- n Substantial failure to provide retition for review, holding the petitioner’s quested evidence. The Board of Alien
2004 Arkansas conviction for assault in Labor Certification Appeals ruled that
www.mnbar.org
Notes&Trends
an employer’s failure to provide sufficient evidence, in response to an audit
request for proof that U.S. applicants
had been contacted by phone, email,
and/or mail, constitutes “substantial
failure” and hence justifies denial of its
application for a labor certification. “In
the event that an employer is selected
for an audit following its submission
of an application for permanent labor
certification, the employer must furnish
the documentation requested by the
CO [Certifying Officer] in support of
its application. 20 C.F.R. §§656.10(f),
656.17(a)(3), 656.20(a). The regulations provide that an application will
be denied if there is a substantial failure
by the employer to provide required
documentation after an Audit Notification issued. 20 C.F.R. §656.20(b).”
Matter of Scenic Landscaping LLC,
2012-PER-00989 (6/1/2016). http://www.
oalj.dol.gov/decisions/alj/per/2012/in_re_
scenic_landscaping_l_2012per00989_
(jun_01_2016)_074919_cadec_sd.pdf
– R. Mark Frey
Frey Law Office
[email protected]
INDIAN LAW
JUDICIAL LAW
n Reservation boundaries; congressional intent controls diminishment. The
Omaha Tribe governs a 300,000-acre
reservation that was created by treaty
in 1854 and now overlaps the village
of Pender, Nebraska. In 2006, the tribe
amended its Beverage Control Ordinance to tax liquor sales throughout
the reservation, including in mostly
non-Indian Pender. The Pender retailers (eventually joined by the intervenor
state of Nebraska) sued, arguing that
an 1882 act diminished the reservation
such that Pender actually lies outside
the reservation boundary.
Applying the three-part Solem v.
Bartlett diminishment test, both the
district court and 8th Circuit ruled
against the state. Nebraska appealed
and the Supreme Court granted certiorari on the question of “Whether
ambiguous evidence concerning the
first two Solem factors forecloses any
possibility that diminishment could be
found on a de facto basis.” Writing for
a unanimous court, Justice Thomas
reaffirmed the Court’s reliance on the
three-part Solem test, emphasizing that
“only Congress can divest a reservation
of its land and diminish its boundaries,
and its intent to do so must be clear.”
Under Solem’s first step, “the most
probative evidence of diminishment
www.mnbar.org
July 2016 s Bench&Bar of Minnesota 37
Notes&Trends
is, of course, the statutory language.”
Nevertheless, because many turn-ofthe-century surplus-lands-acts did not
clearly distinguish between diminishment (which decreases a tribe’s territorial jurisdiction) and mere opening
(which only allows private ownership
within a tribe’s territory), Solem’s second
step looks to any “unequivocal evidence” of the historical understanding
of U.S. officials, tribal leaders, and tribal
members concerning the legislation.
Over time, the Court has also added a
third step, evaluating the United States’
subsequent treatment of the area and its
modern-day demographics, but has emphasized that this step offers “the least
compelling” evidence of diminishment.
Applying this test, the Court agreed
that the original reservation boundaries
survived the 1854 act, which lacked
any “clear textual signal that Congress
intended to diminish the reservation.”
The Court reasoned that at Solem’s
second step, “[t]he mixed historical
evidence relied upon by the parties cannot overcome” this first, most probative
factor. Moreover, although the thirdstep subsequent-demographic history
that Nebraska staked its case on can be
“one additional clue as to what Congress
expected would happen once land on
a particular reservation was opened to
non-Indian settlers,” the Court admonished that it “has never relied solely on
this third consideration to find diminishment[,]” and refused to rely on such
evidence to “rewrite” the 1882 Act.
Nebrasksa v. Parker, ___ U.S. ___, 136
S. Ct. 1072 (2016).
– Jessica Intermill
Hogen Adams PLLC
[email protected]
– Peter J. Rademacher
Hogen Adams PLLC
[email protected]
INTELLECTUAL
PROPERTY
JUDICIAL LAW
n Trademark law: Exceptional case
for attorneys’ fees. Judge Nelson
recently denied a motion for attorney’s
fees in a trademark case. Mountain
Marketing Group sued Heimerl &
Lammers for trademark infringement
concerning the registered mark
1-800-INJURED. Mountain Marketing
alleged that Heimerl willfully infringed
by using and advertising the telephone
number 1-612-INJURED. Defendant
Heimerl prevailed. As the prevailing
party, Heimerl argued that Mountain
Marketing pursued “a groundless case
38 Bench&Bar of Minnesota s July 2016
in an unreasonable manner” making
the case “exceptional.” In trademark
cases, the prevailing party may receive
its attorney’s fees if the court finds
that the case was exceptional. The
Supreme Court had just announced a
new standard for determining whether a
case was “exceptional” under the patent
laws. Under this new standard for patent
infringement cases, “[A]n ‘exceptional’
case is simply one that stands out from
others with respect to the substantive
strength of a party’s litigating position...
or the unreasonable manner in which
the case was litigated.” The 8th Circuit
has yet to address the applicability of
this standard to trademark infringement
claims. The district court did not need
to resolve whether the standard set
forth by the Supreme Court applied in
this case, however, because its current
standards were substantively similar. The
court noted that Mountain Marketing’s
inflated settlement demands and failure
to abide by the court’s timing and
scheduling instructions were not enough
evidence to make the case “exceptional.”
This could simply mean, the court found,
that Mountain Marketing misjudged
the strength of its infringement claims.
Therefore, the court denied Heimerl’s
motion for attorney fees. Mt. Mktg.
Grp., LLC v. Heimerl & Lammers,
LLC, No. 14-cv-846 (SRN/BRT) (D.
Minn. 5/18/2016).
– Tony Zeuli & Saalini Sekar
Merchant & Gould
[email protected]
chartered banks. The Minnesota Federal
District Court determined that Wells
Fargo Mortgage, while not a federally
chartered bank, is exempt from MOSLA
because it was wholly owned by a
federally chartered bank. The district
court also determined that the HAMP
trial plan is not an enforceable contract.
The trial plan stated that it was just a
stepping stone to a modification, and
not an actual modification. The credit
agreement statute of frauds at Minn.
Stat. §513.33 also prevented contract
formation because it was not signed
by the borrowers, and did not include
terms such as the interest rate, monthly
payment amount, or the remaining
loan balance. Finally, the district court
dismissed a promissory estoppel claim.
There is no detrimental reliance by
making payments on a mortgage loan
when a borrower is already obligated to
make payments. Kelly v. Wells Fargo
Bank, N.A., No. 14-CV-03133, 2016
WL 1642624 (D. Minn. 4/25/2016).
n RESPA; MOSLA. The Real Estate
Settlement Procedures Act (RESPA)
shifts the investigatory burden from
borrowers to mortgage servicers upon
receipt of even vague or generic
information requests. Servicers may
have to obtain and investigate complete
servicing records, and may not place the
investigatory burden upon the borrower.
Violations of RESPA are violations of
MOSLA. Borrower obtained a residential
mortgage loan in 2001 and appeared
to have made all payments in the full
required amount at the required times.
REAL PROPERTY
The loan does not appear to have been
originated by a state or federal bank.
JUDICIAL LAW
Chase initially serviced the loan, and
n Mortgages; contracts. Wholly owned then turned over servicing to Specialized
subsidiaries of state or federally chartered Loan Servicing (SLS) in June 2013.
banks that originate residential mortgage Previously, in August 2010, Chase had
loans are exempt from the Minnesota
incorrectly applied a mortgage payment
Residential Mortgage Originator and
entirely to principal, and failed to
Servicer Licensing Act (MOSLA).
apply a portion to interest. The earliest
Home Affordable Modification Program servicing records that SLS obtained
(HAMP) trial plans are not enforceable
went back only so far as June 2011.
contracts. Borrowers obtained a
SLS repeatedly informed the borrower
residential mortgage loan from Wells
that his account was delinquent and
Fargo Mortgage, Inc., which was wholly
charged late fees. SLS and the borrower
owned by and later merged into Wells
exchanged numerous letters, including
Fargo Bank, N.A. Wells Fargo offered
qualified written requests under RESPA.
to enter the borrowers into a trial plan
Despite numerous requests, SLS did
of HAMP. Wells Fargo did not receive
not investigate the period before June
all the documents it requested, though
2011. In each response letter, SLS
the borrowers claim they provided them. referenced its previous correspondence
Wells Fargo foreclosed upon the home,
and stated that it considered the
and the borrowers sued. HAMP does
matter resolved. RESPA requires that,
not provide a private cause of action,
upon a sufficiently detailed request,
so the borrowers proceeded under
mortgage servicers must investigate the
MOSLA. However, MOSLA does not
borrower’s claims and make appropriate
apply to loans “originated by” federally
corrections. The Minnesota Federal
www.mnbar.org
Notes&Trends
District Court determined that SLS
had “plainly” violated RESPA because
SLS never attempted to obtain pre2011 documents. The district court also
determined that borrowers’ requests
do not need to specify where an error
occurred; they only need to generally
describe the “reasons for the belief” that
there is an error. The reasons described
here were that the borrower made all
required payments at the correct time.
By virtue of a finding that SLS violated
RESPA, the district court held that SLS
violated MOSLA. Wirtz v. JPMorgan
Chase Bank, N.A., No. 15-CV-02286,
2016 WL 2642999 (D. Minn. 5/9/2016).
n Foreclosure. Minnesota Statutes
section 582.043 states that mortgage
servicers must “halt” a foreclosure
pending review of a loan-modification
application. The Minnesota Federal
District Court held that “halt” means
that all foreclosure proceedings must
be suspended or stopped during the application review. The borrower brought
claims based upon a violation of the
dual-tracking statute, negligence, and
others. On a motion to dismiss, the
court held that the borrower sufficiently
alleged that the mortgage servicer
violated the statute by continuing to
publish notice of foreclosure sale during
the application review. But the court
also held that there is no negligence
claim arising out of a violation of the
statutory duty. Hall v. The Bank of New
York Mellon, No. 16-CV-167, 2016 WL
2930917 (D. Minn. 5/19/2016).
– Joseph P. Bottrell
Meagher & Geer, PLLP
[email protected]
TAX
judicial law
n Property tax: Appeal dismissed
for failure to serve county attorney.
Rejecting the taxpayer’s constructive
receipt argument, the Minnesota Tax
Court dismissed a Dakota County
property owner’s property tax appeal
because the taxpayer had failed serve
the Dakota County Attorney’s office.
The taxpayer’s petition asserted that
he served the county assessor, treasurer,
and auditor, but not the Dakota County
Attorney. The county attorney similarly
did not have a record of having been
served by the taxpayer, though the
county had constructive notice from
the other county offices. Although
the court noted that it “under[stood]
Mr. Rorem’s predicament, petitioners
must follow [Minn. Stat.] §278.01,
www.mnbar.org
subd. 1(a)’s service requirement for this
court to have jurisdiction over their tax
petitions.” The petition was dismissed
for want of jurisdiction. Rorem v.
Dakota Co., No. 19HA-CV-14-1597,
2016 WL 2989144 (Minn. Tax Ct.
5/24/2016).
n Property tax: Motion to dismiss
denied, lack of evidence as to incomeproducing nature of property. Minnesota
law requires certain disclosures from
owners of income producing property.
Minn. Stat. §278.05, sub. 6(a). If those
disclosures are not made, dismissal
is appropriate. In this dispute, no
disclosure was made and the county
moved to dismiss. The taxpayer asserted
that on the relevant date, the property
was not income-producing. However,
the taxpayer did not provide admissible
evidence to support the assertion. The
county, however, also failed to produce
evidence that would permit the court
to find that the property was incomeproducing on the date in question.
Since the evidence before the court was
insufficient for the court to determine
whether the property was incomeproducing at the time in question, the
motion to dismiss was denied. Sadat v.
Scott Co., No. 70-CV-14-7269 (Minn.
Tax Ct. May 20, 2016).
n Transfer pricing; comparable
uncontrolled transactions method
appropriate. In a memorandum opinion
spanning nearly 150 pages, the tax court
held that the IRS’s assessment of over
$1 billion in a transfer pricing dispute
involving Medtronic’s Puerto Rico
affiliate could not withstand scrutiny.
When related companies in different
taxing jurisdictions trade with one
another, a value must be assigned to the
goods or services that flow between the
companies in order to properly assess
tax liability. Unlike when unrelated
companies trade, assigning value to
the exchange of goods or services
between related entities can create an
incentive to manipulate the assigned
prices. Transfer pricing refers to the
price assigned to these transfers between
related companies. Taxpaying companies
within the United States that trade with
affiliated companies outside the United
States are subject to extensive reporting
requirements. Although Puerto Rico
is a United States territory, companies
based in Puerto Rico are considered
foreign corporations for United States
corporate income-tax purposes. This
particular dispute involved the prices
assigned to licensing of manufacturing
intangibles for the production of medical
July 2016 s Bench&Bar of Minnesota 39
Notes&Trends
products. One difficulty in transfer
pricing disputes is properly determining
the value of the contributions of the
affiliate company to the taxpaying entity.
In this case, Medtronic argued that the
IRS had undervalued the importance
of the affiliate, and in additional had
used an improper method to assign the
royalty rates. Medtronic argued that the
comparable uncontrolled transactions
(CUT) method was the appropriate
valuation method. Using this method,
the company argued, yielded an arm’slength royalty rates of 29% for one
product and 15% for the other. Expert
testimony supported these rates. The
taxpayer further argued that the IRS’s
allocations using the comparable-profits
method (CPM) were much greater
than arm’s length and therefore were
arbitrary, capricious, and unreasonable.
The Service took the position that the
CPM is the best method to determine
the arm’s-length royalty rates on the
intercompany sales of devices and leads
and that making the accompanying
adjustments did not result in an abuse
of discretion. The Service further
argued that since Medtronic US and
Med USA performed all but one of the
economically significant functions, the
value the affiliated company provided
was not significant, and therefore the
Service’s CPM method was appropriate.
The Service also criticized the use of the
CUT method, arguing that the CUT
method does not meet the relevant
statutory and regulatory standard. The
parties disputed the importance of
manufacturing quality as a determinant
of success in the medical device industry.
In its exhaustive opinion, the court
adopted the taxpayer’s methodology—
the CUT method—but the court
did not adopt fully the taxpayer’s
calculations. The court determined that
an appropriate arm’s-length rate for one
product at issue would be 44% and set
the rate at 22% for the other product at
issue. The taxpayer had proposed 29%
and 15%, while the IRS’s expert used an
overall percentage of 49.4% for one tax
year and 58.9% for another tax year (the
IRS expert did not distinguish between
the types of products). The court in
this opinion did not calculate overall
liability, and concluded by noting that
“an appropriate order will be issued.”
Medtronic, Inc. and Consolidated
Subsidiaries v. Comm’r, No. 6944-11,
2016 WL 3221153 T.C. 6/9/2016).
n Income tax: Life insurance distribution includable in gross income;
deficiency and penalties upheld. A
taxpaying couple received an income-tax
40 Bench&Bar of Minnesota s July 2016
deficiency notice, along with associated
fees and penalties totaling approximately
$60,000 after the couple did not include
the value of a life insurance distribution
in their income. The court affirmed the
assessments and penalties. The taxpayer
husband had purchased a life insurance
policy naming himself as the insured and
as the policy’s owner, and his wife, Larita
Mallory, as the direct beneficiary. The
taxpayer could borrow against the policy,
but the terms of the policy provided that
the policy would terminate if the policy
debt exceeded cash value, and the cash
value would be used to extinguish the
debt. In 2011, the policy debt exceeded
the cash value. After giving Mr. Mallory
notice, the insurance company terminated the policy. The insurance company
issued a Form 1099-R for 2011 showing a gross distribution of $237,897.25,
insurance premiums of $87,500, and a
taxable amount of $150,397.25. The
couple received the form, and brought
it to the attention of their tax preparer.
The tax preparer informed Mrs. Mallory
that “she ‘was going to owe a bunch of
money.’” The couple did not report the
income from the Form 1099-R when they
filed their 2011 taxes. They did, however,
make the Service aware of the 1099-R
by attaching it to their 1040; they also
attached a handwritten note that said:
“Paid hundreds of $. No one knows how
to compute this using the 1099R from
Monarch—IRS could not help when
called—Pls send me a corrected 1040
explanation + how much is owed. Thank
you.” The taxpayers argued that because
they did not physically receive any payments in 2011, they did not have income
in that year. Applying the long-standing
principle of constructive income, the
court explained that when the policy terminated, the policy debt—including capitalized interest—was extinguished. This
extinguishment of debt had the effect of
a constructive distribution of the cash
value in the policy. The court went on to
uphold the penalties, though the court
expressly noted that “[w]e offer no view
as to whether the handwritten note was
an adequate disclosure of the relevant
facts.” Mallory v. Comm’r, No. 14873-14,
2016 WL 3188933 (T.C. 6/6/2016).
n Tax Injunction Act applies to initial question of jurisdiction. The Tax
Injunction Act prohibits federal courts
from “enjoin[ing], suspend[ing] or
restrain[ing] the assessment, levy or collection of any tax under State law where
a plain, speedy and efficient remedy may
be had in the courts of such State.” 28
U.S.C. 1341. Diversified Ingredients, a
Missouri corporation, sought a declara-
tion in federal court in Missouri that
the state of Ohio did not have authority to tax Diversified. The corporation
argued that federal courts consistently
have found the Tax Injunction Act
does not bar a threshold determination
of whether a state has jurisdiction to
impose the taxes it seeks to collect. The
court rejected the putative taxpayer’s
argument: It found that it lacked jurisdiction over Diversified’s claim based
upon the TIA because the company had
a plain, adequate, complete, speedy and
efficient remedy under Ohio state law. In
addition, the court held that the court
lacked jurisdiction under the comity
doctrine. Diversified Ingredients, Inc. v.
Testa, No. 4:15-CV-1935RLW, 2016 WL
2932160 (E.D. Mo. 5/19/2016).
n Individual income tax; deductions
disallowed, penalties upheld. A
taxpaying couple, the Powells, owned
and were either employees (Mrs. Powell)
or independent contractor (Mr. Powell)
at a company engaged in acquiring and
selling petroleum marketing properties,
appraising petroleum marketing
properties, and negotiating gasoline and
diesel fuel supply contracts. At issue in
the case were deductions claimed for
mileage, miscellaneous expenses, and
a medical and dental deduction. The
miscellaneous expense deduction related
to the operation of an LLC that Mr.
Powell referred to as the “hops business”
(about 80 acres of land that petitioners
own in Hillsborough, North Carolina,
on which they produce hops). The
court determined that only a portion
of the taxpayers’ claimed mileage
would be permitted to be deducted
because the taxpayers failed to meet
the strict substantiation requirements
for a significant portion of the mileage.
Similarly, the deduction related to the
“hops business” was also disallowed for
lack of substantiation. The taxpayers’
claimed medical and dental deduction
was also disallowed, because the changes
to petitioners’ adjusted gross income
based on other disallowances meant
that the expense no longer exceeded
7.5% of the taxpayers’ adjusted gross
income (Section 213 now has a 10%
AGI threshold). Finally, the court held
the taxpayers liable for the penalty
for an underpayment attributable to a
substantial understatement of income
tax under section 6662(a) and (b)(2).
James Clement Powell and Lucy H.
Powell v. Comm’r, No. 21839-14, 2016
WL 3200191 (T.C. 6/8/2016).
– Morgan Holcomb
Mitchell Hamline School of Law
[email protected]
www.mnbar.org
People Practice
People&Practice
n The Hennepin
County Bar
Association
announced
its 2016-2017
executive
committee. Serving
n Charles E. Jones joined Moss &
as president is
Barnett, A Professional Association,
in the firm’s litigation and accountant
Paul Floyd of
law teams. Jones focuses his practice on
Wallen-Friedman
Paul Floyd
defending malpractice claims against ac- & Floyd. Also
countants and attorneys, as well as other serving are: President-elect Thaddeus
professional liability actions against insur- Lightfoot of Dorsey & Whitney LLP;
ance agents and brokers, brokerage firms, Treasurer Adine Momoh of Stinson
Leonard Street; and Secretary Jeffrey
stockbrokers, and financial advisors.
Baill of Yost & Baill. The past president
n Volunteer
is Kimberly Lowe.
Lawyers Network’s
n James H. Wills and Carole Clark
Martha Delaney
n Kimberly Lowe and Sally Silk joined
Isakson joined Barna, Guzy & Steffen
LTD. Wills will continue to focus his
was awarded the
the JUX Law Firm. Lowe practices
practice extensively in the area of trans- Tanya Neiman Pro
as a transactional lawyer advising
portation law. Isakson practices primarily Bono Professional
entrepreneurs and businesses in the forin business and corporate law, with a
of the Year Award
profit, nonprofit, and social enterprise
focus on computer software companies. by the National
sectors. Lowe is the most recent past
Association of Pro
president of the Hennepin County Bar
Martha Delaney
n Julie Nagorski and Janet G. StellpBono Professionals
Association. Silk focuses her practice
flug joined DeWitt Ross & Stevens in its
at the 2016 Equal
on complex commercial disputes, trusts
Minneapolis office. Nagorski has a wealth Justice Conference in Chicago. This
and estates litigation, and products
of commercial litigation experience
award recognizes steadfast commitment liability. She currently serves as co-chair
representing clients in variety of disputes. and exceptional contributions to the
of the MSBA’s Legal Assistance to the
delivery of pro bono legal services. Disadvantaged Committee.
Stellpflug has more than 25 years of
n Bryan R.
Browning was
elected president
of the Minnesota Hispanic Bar
Association. He
was also recently
elected co-chair of
the MSBA’s DiverBryan R. Browning
sity and Inclusion
Leadership Council. Browning is an attorney at Bassford
Remele, PA and focuses his practice in
the areas of products liability, personal
injury, wrongful death, construction,
subrogation, and commercial litigation.
experience defending corporate clients in
a variety of civil matters. Both are MSBA
Board Certified Specialists, a certification
achieved by fewer than 3 percent of all
registered attorneys in Minnesota.
introducing your
2016-17 MSBA OfficerS
President
Robin M. WolpeRt
Sapientia Law Group PLLC
Minneapolis, MN
www.mnbar.org
President-Elect
Sonia MilleR-Van ooRt
Sapientia Law Group PLLC
Minneapolis, MN
Treasurer
paul W. GodfRey
Twin Cities Branch Legal Office
for Farmers Insurance
Secretary
toM nelSon
Stinson Leonard Street LLP
Minneapolis, MN
July 2016 s Bench&Bar of Minnesota 41
People&Practice
In Memoriam
FRANK ALLEN DVORAK passed away
on February 28, 2016 at the age of 73.
Dvorak graduated magna cum laude
from the University of Minnesota
Law School in 1967. He practiced law
for 45 years as a partner at Foley &
Mansfield and Mackall, Crounse &
Moore in Minneapolis.
EDWARD PIERRE STARR of St. Paul
passed away on May 7, 2016 at the
age of 84. Starr was a graduate of
William Mitchell College of Law. He
worked as a civil trial lawyer with
Peterson and Popovich from 19601968; Wozniak Firm from 19681970; Latimer-Mahlum-Starr and
Matykieweiz from 1970-1976; and
served as St. Paul City Attorney from
1979-1990.
employment issues. Rockwell practices
in the areas of estate planning, probate,
and trust administration.
subrogation losses in the areas of products liability, construction defects, and
general torts.
n Patrick J. Seul and Ashley
Thronson joined Fredrikson & Byron
PA. Seul joins as a senior associate in
the mergers & acquisitions, private
equity, corporate governance,
and securities groups. Thronson joins as
an associate in the employment & labor,
litigation, and employment & labor
litigation groups.
n Jordan P. Novak joined Loop
Legal PLLC. He received his J.D.
from Hamline University School of
Law in 2013. Novak serves small and
mid-size companies with governance,
compliance, and contract needs.
n Gov. Mark
Dayton announced
the appointment of
Heidi M. Chandler
as district court
judge in Minnesota’s 9th Judicial
District. Chandler is replacing
Heidi M. Chandler
the Hon. Jon A.
Maturi, and will
be chambered at Grand Rapids in Itasca
County. Chandler is an assistant Itasca
county attorney, where she prosecutes
adult criminal cases including felonies,
gross misdemeanors, and misdemeanors.
n V. John Ella and Carolyn E. Guy
joined Trepanier MacGillis Battina PA.
Ella has joined as a shareholder, and
practices in the areas of employment
law, executive law, non-compete litigation, and business litigation. Guy has
joined as senior counsel. Her practice
focuses on employment, corporate, and
financial services litigation.
n Gov. Mark
Dayton announced
the appointments
RICHARD D. GOFF passed away on
of Douglas C.
June 7, 2016. Goff received both a
Bayley and Jamie
B.A. and a J.D. from the University
L. Cork as district
of Minnesota. He practiced law in
court judges in
Minnesota’s 1st
Minnesota for more than 50 years,
specializing in family law.
Judicial District.
Douglas C. Bayley
Bayley is replacing
DEGALYNN WADE SANDERS of
the Hon. Thomas
n Jacob L. Geiermann has joined FelEdina, passed away May 14, 2016 at
haber Larson as an associate. Geiermann W. Bibus, and will
the age of 43. She was an attorney,
will continue his practice in the areas
be chambered at
mentor, and volunteer.
of estate planning and administration,
Red Wing in Goodbusiness law, and tax matters.
hue County. Bayley
is an assistant pubn Robert Schug, Jacob Schutz, and
n Gov. Mark
lic defender in the
Lyndsey Jorgensen joined the MinDayton announced
1st Judicial District
neapolis office of Nichols Kaster. Schug
the appointment
Public Defender’s
has rejoined the firm in the wage &
of Gretchen
Office, where he
hour class action team, Schutz joins the D. Thilmony as
represents defenJamie L. Cork
ERISA class action team, and Jorgensen district court judge
dants in criminal
joins the consumer class action team.
in Minnesota’s
cases. Cork is replacing the Hon. Patrice
7th Judicial
K. Sutherland, and will be chambered
n Fafinski Mark & Johnson, PA, head- District. Thilmony
at Hastings in Dakota County. Cork is
Gretchen D. Thilmony
quartered in Eden Prairie, announced
is replacing the
an assistant Hennepin County attorney,
that its new office is open for business
Hon. Joseph A.
where she works in the child protection
in New Ulm. The office is located at
Evans, and will be chambered at Detroit division.
700 North Minnesota Street, Suite B,
Lakes in Becker County. Thilmony is
in New Ulm. The expansion into the
the Becker County attorney, where she
n Amy Yanik Meisel and Michelle
southern Minnesota community is part
prosecutes felony, gross misdemeanor,
Travers have joined Henschel Moberg
of the firm’s plan to expand its agriculand misdemeanor offenses.
Goff, PA, a Minneapolis boutique firm
focusing exclusively on family law.
tural law practice. Chairing the agriculture group is Jared D. Peterson, who
n Michelle D. Hurley and Anamarie
joined the firm this year as a shareholder. Reyes Kolden were named partners with n Hope Law PLLC, a commercial real
Yost & Baill, LLP. Hurley joined the firm estate law firm, was awarded national
n Judah Druck, Thomas Pack, and
in 2004. She devotes her practice to
certification from the Women’s Business
Kevin Rockwell joined Maslon LLP.
civil litigation of property subrogation
Development Center, a regional certifyDruck focuses his practice in the areas
losses in the areas of products liability,
ing partner of the Women’s Business Enof commercial disputes and product
construction defects, workers’ compenterprise National Council. Certification
liability litigation. Pack represents
sation, and general torts. Reyes Kolden
confirms that the business is at least 51
clients in trade secret disputes, inteljoined the firm in 2003. She devotes her percent owned, operated, and controlled
lectual property litigation, and labor and practice to civil litigation of property
by a woman or women.
42 Bench&Bar of Minnesota s July 2016
www.mnbar.org
People&Practice
n The Hennepin County
Bar Association
recognized two for
their commitment
to the highest
professional standards in the legal
community with
the ProfessionalJudge Peter Cahill
ism Award. This
year’s recipients
are two prominent
members of the
Minnesota legal
community, Chief
Judge Peter Cahill
(4th Judicial District) and Susan
Holden (SiebenSusan Holden
Carey). They were
recognized by the
HCBA at its annual meeting on June 1.
The award is given to lawyers who best
exemplify the practice of law as a profession, which includes a spirit of public
service and promotion of the highest
possible level of competence, integrity,
and ethical conduct.
equity financings, takeover and activist
shareholder matters, corporate governance, securities laws, and general
corporate counseling.
n Jill M. Jensen joined Askvig &
Johnson, PLLP as an associate attorney.
The firm focuses exclusively in family
law. Jensen received her J.D. from
William Mitchell College of Law.
n Tom F. Nelson
was named the
Minnesota recipient of the 8th Circuit Bar Association’s Richard S.
Arnold Award for
Distinguished Service and Lifetime
Tom F. Nelson
Achievement at
the recent Federal
8th Circuit Judicial Conference in Rogers, AK. Nelson is a partner at Stinson
Leonard Street. He was most recently
named secretary of the MSBA Council.
n Jeffrey D. Gram joined Henson &
Efron, PA as an associate practicing in
the area of estate planning, trust, and
n The global law firm Jones Day opened probate. Working with families, indian office in Minneapolis. This is the
viduals, fiduciaries, and family business
firm’s 18th office in the United States,
owners, he assists with estate planning,
estate and trust administration, busiand 44th worldwide. The Minneapolis
office will include three new Minneapness succession planning, and charitable
olis-based partners: Roy A. Ginsburg,
planning strategies.
who has represented companies for more
than 35 years in employment and comn Bradley R. Prowant joined
Larson · King as an associate and will
mercial litigation; Annamarie Daley,
who focuses her practice on commerfocus his practice on business litigation,
cial litigation, federal regulatory, and
financial services litigation, insurance,
intellectual property law matters; and
and labor and employment. Prowant
Peter Ekberg, who focuses his practice
graduated from the University of
on M&A, public and private company
Minnesota Law School.
n Debra S. Nelson joined Henningson
& Snoxell, Ltd. as a member of the business department. Nelson will practice in
the areas of corporate law, employment
law, and real estate.
n Barbara
Müller was appointed honorary
consul of Germany.
In this role she
is tasked to promote cooperation
between the Federal
Republic of Germany and the United
Barbara Müller
States regarding
economic relations, traffic, culture, and
the administration of justice. The role
serves Minnesota, North Dakota, South
Dakota, and Pierce, St. Croix, and Polk
counties in Wisconsin. Müller is a shareholder at Fredrikson & Byron PA. n Fredrikson &
Byron shareholder James L.
Baillie was selected to receive the
Volunteer Lawyers Network’s
2016 John D.
Levine Distin James L. Baillie
guished Service
Award. The award is presented each
year to a volunteer who has provided
years of service exemplifying the spirit
of pro bono legal services and access to
justice for those in poverty. Baillie has
served VLN continuously since 1969.
Bench & Bar accepts press releases and
announcements regarding current members
of the MSBA. Email [email protected]
Cutler Law Firm, LLP, based in Sioux Falls, South Dakota has immediate openings for the following positions:
ESTATE PLANNING ATTORNEY
Experienced Estate Planning Attorney
with at least three years of experience.
Compensation will be commensurate
with experience.
www.cutlerlawfirm.com
Confidential inquiries, including resume’ and cover letter
detailing experience should be directed to Jean Brockmueller
at [email protected] or Cutler Law Firm, LLP,
PO Box 1400, Sioux Falls, SD 57101-1400.
www.mnbar.org
LITIGATION ATTORNEY
Litigation Attorney with two to five years
of experience in business and civil
litigation. Strong academic credentials
and oral and written skills required.
July 2016 s Bench&Bar of Minnesota 43
Opportunity Market
Attorney Wanted
other tortfeasors for the sake of safety,
fairness and real justice in our community. This is your chance to join an established and growing firm. We have offices
in St. Cloud and Edina--this position could
be located in either office. Interested
candidates should submit a cover letter,
a resume, a writing sample (15 pages or
less), and a law school transcript to: lori@
hallinjurylaw.com. Thank you in advance
for your interest in our firm.
SMALL Edina law firm seeks a motivated associate with one to three years of
real estate experience, as well as solid
legal research and writing skills. Some
litigation experience a plus. Great opportunity for an attorney willing to work
hard and grow with the firm. Please
send a cover letter, resume and writing sample to the Morris Law Group,
sssss
PA, 7241 Ohms Lane, Suite 275, Edina,
MN 55439, or email to: agabor@morris- ASSOCIATE Attorney wanted in Fergus
Falls, MN. Candidate must have a strong
lawmn.com.
academic background with excellent resssss
search, writing, analytical, and communiSMALL, but busy law firm seeks a cation skills. We offer competitive salary
bankruptcy associate with one to three and benefits. If you are highly motivated,
years’ experience, specifically with looking to build a career, not just land a
Chapters 7, 11 and 13. The success- new job, and are looking for a law firm
ful candidate will have a superior work that demonstrates professionalism, trust,
ethic and an ability to grow this practice loyalty and respect, please visit our webarea. Please send a cover letter, resume site www.clinelawyers.com, then submit
and writing sample to: Bench & Bar Box your cover letter, resume and writing
300, c/o MSBA, 600 Nicollet Mall, #380, sample to: [email protected]
Minneapolis, MN 55402
sssss
sssss
ASSOCIATE position - general litigation.
Moss & Barnett, A Professional Association, seeks an attorney with zero to three
years’ experience in general litigation for
its growing regional and national litigation practices. Preferred candidates will
have superior academic qualifications,
strong writing skills, and a distinguished
work record. Salary commensurate with
experience and qualifications. Position
eligible for participation in associate
bonus program. Interested candidates
should email cover letter, resume and
sssss
law school transcript to Julie Donaldson,
ARE YOU A young lawyer looking to HR Director, Julie.Donaldson@lawmoss.
make a positive difference in people’s com. Moss & Barnett is an affirmative aclives? Are you looking for hands-on ex- tion/EEO employer.
perience in an inspiring and fun environsssss
ment? Do you hate billable hours? Plaintiffs’ side personal injury firm is looking to ATTORNEY wanted small southwest
add an associate with zero to five years’ suburban firm is seeking an estate planexperience to join its practice. Based pri- ning/business/real estate attorney, with
marily in St. Cloud but with a presence some book of business. A very collegial
and reputation throughout the state, Hall office, we believe someone with at least
Law offers innovative, tenacious, and three to five years’ experience in complex
compassionate representation, standing estate planning/business succession/
up to insurance conglomerates, defec- probate litigation will feel most comforttive product makers, sex abusers, and able in our office. If you are community
AN ESTABLISHED law firm is seeking
an associate attorney to practice in the
areas of estate planning/family law/real
estate and general practice in a growing
Central Minnesota community. Please
send a resume accompanied by a cover
letter summarizing your qualifications
and expectations to: Willenbring, Dahl,
Wocken & Zimmermann, PLLC, PO Box
417, Cold Spring, MN 56320 Attn: Linda
Vossen.
44 Bench&Bar of Minnesota s July 2016
minded with a concern for people combined with energy and a self-starter attitude, please contact us. Compensation
is primarily based on production and is
negotiable. We believe in a team approach and are fortunate to have a loyal
clientele. Please respond to: [email protected]
sssss
CLOQUET law firm seeking attorney
with zero to three years’ experience,
looking to permanently relocate. Ability
in the areas of real estate, corporations,
commercial transactions and probate a
plus. Strong writing and oral communication skills are required, demonstrable
client skills and work ethic are important. For consideration please forward
cover letter and resume to: [email protected].
sssss
DO YOU WANT to be a trial lawyer (not
just a litigator)? Expanding Minneapolis plaintiffs firm seeking sr. associate /
partner level trial litigator with five plus
years’ experience fighting the good fight
for personal injury clients. Opportunity
to step into leading role with talented
team. An ideal candidate is a fearless
fighter for justice for those injured. Open
to bringing on existing support staff.
Email: [email protected]
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.
DEADLINE:
Ad copy received with payment will be
posted online within one week and will
be published in the next available issue.
“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
ERISA Associate Attorney - Minneapolis. Nichols Kaster, PLLP, a nationally
recognized plaintiffs firm that focuses
on representing employees and consumers whose rights have been violated, seeks an associate for their growing
ERISA class action practice. The ideal
candidate will have three years of litigation experience, be plaintiff oriented,
and possess a strong work ethic. For
more information or apply for this position. Please visit http://www.nka.com/
current-opportunities/.
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FOURTEEN-LAWYER Twin Cities firm
is seeking an attorney with 7-20 years
litigation experience for its national personal injury defense practice. Please
contact hiring attorney at: [email protected].
sssss
GROWING top AV-rated Twin Cities civil
litigation law firm is looking for dynamic
client focused lawyers with established
practices. Excellent opportunity for
highly motivated candidates with strong
communication and business skills in a
flexible setting. Please send confidential letter of interest with CV to: Managing Shareholder, O’Meara Leer Wagner
& Kohl, PA 7401 Metro Blvd., Suite 600,
Minneapolis, MN. Email: SPOMeara@
OLWKlaw.com.
EXPERIENCED attorney with established
St. Paul law firm looking for attorney with
three to five years’ experience. Must
have desire to grow workers compensation law and social security law practice.
There is a possibility for partnership and
long-term acquisition. Please send a cover letter, and resume to: Bench & Bar Box
301, c/o MSBA, 600 Nicollet Mall, #380,
Minneapolis, MN 55402.
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INSURANCE litigation firm located in
downtown Minneapolis seeking an associate attorney with one or more years of
litigation experience to add to our team.
Applicants must be admitted to the MN
bar and possess research, analysis, and
writing skills. Court room and deposition
experience a plus. Our practice is primarily property and casualty defense with a
stable client base and steady growth.
Please email cover letter (including salary requirements), resume, and a writing
sample to [email protected].
sssss
JOHNSON Brothers Liquor Company
is a national family-owned wine, sprits
and beer distributor headquartered in St
Paul, Minnesota. Johnson Brothers has
been providing exceptional service to our
customers since 1953. General Counsel
is directly involved in complex business
transactions including negotiating critical contracts, managing the company’s
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commercial matters (domestic and inFOX ROTHSCHILD LLP has an opening ternational), creating internal processes
in the Minneapolis, MN office for a Liti- with sales, finance, and HR, and mangation Associate with two to three years aging outside counsel on commercial,
of general litigation experience. The ideal employment, IP, real estate and general
candidate will have a superior academic corporate matters. Qualifications: Jurecord and excellent writing skills. Must ris Doctorate Degree. Ten plus years’
be licensed in the State of Minnesota. experience as a practicing corporate
Large law firm experience preferred. lawyer, preferably initially with a promiEOE. We are currently not accepting nent national law firm before moving to
resumes from search firms for this po- an in-house position. Ten years of comsition. If interested please apply on our mercial transactions experience with a
website at www.foxrothschild.com
strong background drafting and negotiating commercial deals. Overall broad legal
sssss
knowledge (corporate law, , litigation,
EXPERIENCED attorney. Thompson employment, etc.) Experience managing
Law, PC, a Sioux Falls-based estate and other attorneys and supervising support
business planning firm, is seeking an staff in a corporation. Experience with
estate planning attorney with five plus cost-effective management of outside
years’ experience. Advanced planning legal resources. High degree of profesand/or estate administration experience sional ethics, integrity and gravitas. Expreferred. We utilize a team-based ap- cellent judgment and analytical skills.
proach; applicants must value opportu- Top-notch interpersonal and communicanities to collaborate. Please send a cov- tion skills with excellent verbal and writer letter and resume to: Sandy Hensch, ten correspondence capabilities. Ability
Thompson Law, PC, 5027 S. Western to anticipate legal issues or risks and to
Avenue, Sioux Falls, SD 57108, or email “see around the corner.” Send resumes
[email protected].
to: [email protected]
www.mnbar.org
LABOR & Employment Associate Minneapolis Faegre Baker Daniels LLP
seeks an Employment Litigation Associate for our thriving Minneapolis Labor &
Employment Group. Faegre Baker Daniels is an Am Law 100 firm with offices
located throughout the U.S., Europe,
and China. Ideal candidates will have
one to three years of employment litigation experience and a strong commitment to client service and teamwork.
Duties are expected to include a broad
range of employment litigation matters
representing employers. Candidates
will have strong academic credentials,
writing skills and professional recommendations where appropriate. To apply, please submit your cover letter,
resume, writing sample and transcripts
at www.faegrebd.com/careers. NOTE:
We are not accepting search firm resumes at this time for this position.
Faegre Baker Daniels is committed to
providing equal employment opportunity to all employees and applicants for
employment without regarding to race,
color, religion, creed, gender, sexual
orientation, gender identity, status as
a disabled veteran or other veteran or
military status, sex, age, national origin,
ancestry, disability, marital status, status with regard to public assistance or
other protected by class status.
sssss
LITIGATION Associate - Minneapolis
office. Lindquist & Vennum LLP, a 150+
attorney law firm, is seeking a midlevel Associate with a minimum of two
years of business litigation experience
for its Minneapolis office. The firm represents Fortune 500 clients and others
in complex cases offering its associates
challenging discovery, motion, and trial
practice experience. Responsibilities
include drafting pleadings, drafting and
arguing motions, taking and defending depositions, and working as part
of a trial team. Strong preference for
candidates with previous judicial clerk
and/or large law firm litigation experience. Excellent academic performance,
good oral and written communication
skills, and distinguished work record
required. Interested applicants should
apply by email with a cover letter, resume, law school transcript, and five to
ten page writing sample addressed to:
Jenny L. Naegele, Recruiting Coordinator, Lindquist & Vennum LLP, jnaegele@
lindquist.com. Lindquist & Vennum is an
EEO/AA Employer.
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July 2016 s Bench&Bar of Minnesota 45
OpportunityMarket
COLLABERA is looking for law graduates with or without bar admission for a
contractual project in Eagan, MN. $20$30 per hour. To apply, Contact: monil.
[email protected] or call me at
(973) 929-3861.
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FARGO firm seeks real estate attorney
for real estate practice/closing company. Experience with title examinations, purchase agreements, closings is
strongly preferred. Email: mkemmer@
nilleslaw.com with CV and cover letter.
Applications held in confidence.
sssss
law firm or in-house corporation. Excellent written and oral communication
skills, attention to detail and very strong
academic credentials are required. This
position offers competitive compensation and unlimited potential for professional growth. If you are looking for an
opportunity with a growing, collaborative firm, please apply on line at www.
FaegreBD.com and include your resume,
unofficial transcript, writing sample, and
cover letter.. NOTE: We are not accepting
search firm resumes at this time for this
position. Faegre Baker Daniels is committed to providing equal employment
opportunity to all employees and applicants for employment without regard to
race, color, religion, creed, gender, sexual orientation, gender identity, status
as a disabled veteran or other veteran or
military status, sex, age, national origin,
ancestry, disability, marital status, status
with regard to public assistance, or other
protected by class status.
Well-established
Management
labor and employment law firm seeks
experienced L/E lawyer to join practice
team. Excellent career opportunity for
a candidate with three to ten years of
experience in labor and employment
law and/or HR or employee relations.
Please send resume to: firm@seatonsssss
law.com or mail to: Hua Her, Seaton,
Peters & Revnew, PA, 7300 Metro Blvd, MANKATO, MN: Farrish Johnson Law
Office seeks full-time attorney licensed in
Suite 500, Edina, MN 55439.
Minnesota to practice in family law. Cansssss
didate must have the desire to practice in
NOTICE of U.S. Magistrate Judge this area, strong skills in legal research,
Vacancy. The Judicial Conference of writing, and communication, plus expethe United States has authorized the rience drafting and analyzing pleadings.
appointment of one full-time United Email resume, references, and writing
States Magistrate Judge for the United sample to: [email protected]
States District Court for the District of
sssss
Minnesota. The current salary of the
full-time position is $186,852 per year ROSEVILLE area law office seeking asand the position will be located in Min- sociate with one to three years’ experineapolis or St. Paul. The term of office ence performing in areas of real estate,
for a full-time magistrate judge is eight estate planning, and business law. Send
years; incumbents may be reappointed resumes to: [email protected].
to successive terms. The full public nosssss
tice, application instructions, and application form are available on the Court’s WANTED: Litigator who desires to exwebsite at www.mnd.uscourts.gov. pand practice. We have a busy commerApplications must be received no later cial practice with two experienced attorthan 5:00 p.m. Central Time on Friday, neys in the northern suburbs of St. Paul.
We would like to add an experienced
July 29, 2016.
litigator who brings some percentage of
sssss
his or her own work and can immediately
PRODUCT Liability and Environmental handle commercial litigation/real estate
Associate. The global law firm of Faegre litigation matters with little supervision or
Baker Daniels LLP is actively recruit- guidance. Most likely seeking someone
ing an experienced associate to join to come as a partner, but would consider
the Product Liability and Environmental associate relationships as well. We have
practice group in our Minneapolis office. outstanding staff support and a very
Faegre Baker Daniels is an AmLaw 100 pleasant, relaxed environment. Please
firm with offices located throughout the send cover letter and resume to: Bench
U.S., Asia and the UK. Our ideal can- & Bar Box 302, c/o MSBA, 600 Nicollet
didate would be an attorney with four Mall, #380, Minneapolis, MN 55402.
or more years of experience, including
class action experience and food litigaFollow Us on:
tion experience, from an AmLaw 100
www.mnbenchbar.com
46 Bench&Bar of Minnesota s July 2016
FOR SALE
GRAND MARAIS solo practice for sale.
Established 26 year history. Office rental or purchase available. Contact Scott
Smith: (218) 387-9800 [email protected]
Office Space
OFFICES available for rent; fully
furnished. Price starting at $500.00
depending the office size. Call (651)
247-4783. Reply to: Bench & Bar Box
294, c/o MSBA, 600 Nicollet Mall, #380,
Minneapolis, MN 55402
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OFFICE Space. Two offices in Apple Valley for rent with 7 attorneys. Kitchen,
conference room available for clients.
Contact John Wagner at: (952) 431-1222.
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PRIME, convenient, Eden Prairie. One
to five individual offices. Average size:
13x14. Floor-to-Ceiling windows. $750
and up. Upgrades: furnished, phone,
support staff cube, file storage, conf.
room and more. Call Ed or Scott: (952)
563-3000
sssss
AFFORDABLE office space in downtown Minneapolis. Flexible terms.
Steps from courthouses. Join other
independent attorneys in historic building featuring full-time receptionist, highspeed internet, fax, and conference
room. Contact Keith Johnson at: (612)
341-2525.
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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: marketing@exsmn.
com. Visit: www.exsmn.com/attorneys
for our current promotion. Rent one office, use four metro locations.
sssss
OFFICES for Lease - White Bear Lake.
Law firm has three individual offices
available for lease at 4525 Allendale
Drive. Rent is variable based on office(s)
and term. Contact Nichole Lorenz at:
(651) 426-9980 or [email protected].
www.mnbar.org
OpportunityMarket
VIRTUAL office – Ideal for attorneys
who want a professional business image but don’t need a full-time office or
who desire access to additional office
locations. With a virtual office, you have
access to the amenities at all four of
our prestigious locations (IDS Center,
Edina, St. Louis Park & Oakdale). From
$59 monthly. Call Wayne with Executive Suites of Minnesota at: (952) 8515555 or email: [email protected].
For our current promotion, visit: www.
exsmn.com/attorneys.
ST. PAUL virtual office, low rates, close to
Ramsey County Courthouse, conference
room, kitchenette, private office, copier,
FAX, internet, free parking your name on
the door, call Bob at: (651) 292-1000.
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METRO Executive Center - 7800 Metro
Parkway: Great office space available –
Suite 214 - 975 RSF for $1325/month –
Gross leases. Close to MSP airport and
MOA. Just down the street from the Lite
Rail. Executive office center on site with
ala carte services available for a fee if
sssss
needed. Contact Ardis Hafdahl at (651)
OFFICE space and virtual office servic- 271-2399 or at [email protected] for
es in a community of the nicest high- more information.
quality lawyers you could ever meet, in
sssss
a beautiful office suite with lots of natural light that is a cut above the rest. If MINNETONKA offices for rent. Join 11
your work environment and the people independent, solo attorneys. Furniture,
around you are important to you, you services available, 24/7 access. Gas
should check us out. www.morelawm- fireplace in large office. Professional,
convenient, friendly. Highways 7/101
pls.com or call us at (612) 206-3700.
in
Minnetonka.
(952)
474-4406.
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minnetonkaoffices.com
1955 UNIVERSITY Avenue – 163-542
sssss
$16-$18 RSF. Built in 1980 renovated in
2015. Located on the Green Line one NORTHWESTERN Building – 275 East
block from the Fairview street station. 4th Street, Saint Paul. Small to larger
Highly visible location on the corner of office spaces available for lease. Great
University Avenue West West & Prior. for start-up attorneys. Monthly rates
Convenient location and easily acces- from $250 – $1229/month. Historic
sible to highways 94 and 280 center building. Lowertown. Lite Rail. Deli on
of the Twin Cities. Property has ample 1st floor. Contact Wendy at (612) 327parking. Please call Christina at: (651) 2231 for a showing or check us out at
www.northwesternbuilding.com
246-5810.
sssss
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 lightrail 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.
sssss
EXPERIENCED Edina attorney seeks
attorney to rent office space and to
share referrals of probate, estate
planning and real estate. Great location
at I-494 and France. Good opportunity
for the right person. Reply with resume
and interview request to: Bench & Bar
Box 296, c/o MSBA, 600 Nicollet Mall,
#380, Minneapolis, MN 55402.
www.mnbar.org
Minimum of three years’ experience
with a paralegal certificate or equivalent degree. Top-notch legal editing
skills, Bluebook skills, and familiarity
with ECF filing required. Competitive
pay. To apply, contact: [email protected].
Professional Services
NAPLES, Florida-based probate, real
estate and estate planning attorney
licensed in Minnesota and Florida.
Robert W. Groth, PA (239) 593-1444;
[email protected]
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REAL ESTATE expert witness and
arbitrator. Agent standards of care, fiduciary duties, disclosure, damages/
lost profit analysis, and due diligence
issues. Analysis and distillation of complex real estate matters. Excellent credentials and experience. drtommusil@
gmail.com (612) 207-7895
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E-DISCOVERY: attorney David Miller
provides cost-effective e-discovery
consulting and advisory services
to attorneys and litigants. dmiller@
clarusdiscovery,
(612)
217-1466
clarusdiscovery.com
sssss
MEDIATION Training: Advanced and
Certified Family and Civil Courses.
Learn the transformative approach,
sssss
highly-rated curriculum and instructor.
OFFICE suite windowed offices--- simon-mediation.com (651) 699-5000.
also virtual attorney package available.
sssss
Professional and impressive to clients–
meeting
not expensive. Free Parking and PARLIAMENTARIAN,
wireless internet. Lakes & Plains Office facilitator. “We go where angels
Building, 842 Raymond Avenue, St. Paul. fear to tread.TM” Thomas Gmeinder,
Multiple conference rooms, law library, PRP, CPP-T: (651) 291-2685. THOM@
kitchenette, receptionist and lobby; gmeinder.name.
attorney collaboration and interaction.
sssss
Call Mick at: (651) 647-6250 or email:
ATTORNEY coach/consultant Roy S.
[email protected]
Ginsburg provides marketing, practice
management and strategic/succession
planning services to individual lawyers
POSITION AVAILABLE
and firms. www.royginsburg.com,
[email protected], (612) 812-4500.
PARALEGAL. Berger & Montague, PC,
a national plaintiffs’ class action litigation
firm is seeking a smart and dedicated
Vacation Rental
paralegal with experience in civil litigation to join the firm’s new Minneapolis
office. Responsibilities will include draft- RENT well-appointed lake home on
ing, editing and ECF filing of litigation Crosslake and high demand Whitefish
documents, managing litigation calen- Chain in the Brainerd area. Call: (612)
dars, and communicating with clients. 632-8324 for information and pictures.
July 2016 s Bench&Bar of Minnesota 47
Books&Bytes
n The new Minnesota
Boundary Law Deskbook
provides thorough legal
analysis and practical tips.
Written
and
edited by
Minnesota
attorneys
who
practice
in the
area of boundary
law, the new deskbook
includes information on
determining boundaries based
on legal descriptions, surveys,
adverse possession, and
practical location. The deskbook also covers waterfront
property issues and other
special boundary problems,
as well as chapters on solving
disputes both judicially and
non-judicially and forms to
help you in your practice.
Published by Minnesota CLE:
www.minncle.org.
* Go to mnbar.org/discounts
for discounts on ABA Books
management structures,
executive compensation,
fiduciary duties and liability,
limited liability, mergers and
conversions, dissolution, and
more. The deskbook also
comes with an eFormbook
that features electronic,
editable forms including
articles of organization and
an operating agreement.
Published by Minnesota
CLE: www.minncle.org.
ing programs and educating
employers on wage and hour
rules. Published by Aspatore
books from Thomson
Reuters: legalsolutions.
thomsonreuters.com
n Solo Out of Law
School: A “How Can”
Guide to Starting a Law
Firm as a New Attorney
is a book
for both law
students
n Legal changes in disthinking
tilleries regulation may be
about a solo
slow to occur, but up-andcareer and
coming distillery owners
attorneys
still face myriad obstacles
looking to
when it comes to compliopen their
ance. Moonshiner to
own firms.
Craft Distillery: Leading
It’s about
Lawyers on the Busimindset,
ness of Distilling provides motivation, and viewing a
readers
solo career with perspective
with best
that allows you to see
practices
yourself and your work as
for under- something you can be proud
standing
of. It’s not a “how to” guide
federal Al- to starting a law practice.
n Written and edited
cohol and Rather, it’s a “how can” guide
by Minnesota business
Tobacco
to developing the mental
law attorneys, the LLCs
Tax and
toughness and right mindset
Deskbook is designed to
Trade Bu- to succeed as a solo attorney.
help attorneys navigating
reau laws Author Michael Brennan is
Minnesota’s Revised Uniform
on distill- a solo practitioner operating
LLC Act. The deskbook
eries and mitigating industry
a virtual law office serving
thoroughly risks. Featuring experienced
clients throughout Illinois,
covers the
partners from across the
Minnesota, and Wisconsin.
new act,
country, this book provides
Available at: Amazon.com
including
you with insights into selectcomparisons ing distillery locations and
n Did you know that a
to the old
complying with zoning laws.
lawyer’s failure to make
act and
Inside, you will find advice
appropriate use of available
information on maintaining accounts of
technology can constitute
on the
sales, establishing clients with an ethical breach? The
transition. Topics
importance of technology
distribution contracts, and
covered include: tax
key strategies for overcoming in the legal professional has
considerations, the formation compliance concerns, such as grown dramatically. As a
process, governance and
result, the profession has
developing employee train48 Bench&Bar of Minnesota s July 2016
moved toward
recognizing
a duty for
attorneys to
acquire a
level of basic
competence
in dealing
with
technology.
Technology
Tips for Seniors is a guide
for attorneys who want to
learn how to successfully
navigate the vast world of
modern technology. *Order
online at: www.shopABA.org
n In The Inequality
Equalizer: Want It,
Claim It, Own It—and
Maximize Your Career
Success,
career coach
and executive
search consultant Jena
Abernathy
shares realworld success
strategies for
young professionals in a
no-nonsense
guide that will help them
strategize their careers and
gain the confidence, skills,
and know-how they need to
get results, make winning
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