FRESH LOOK PROBLEM UNPUBLISHED OPINIONS

OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION 

VOLUME LXXIII NUMBER XI 

DECEMBER 2016 

www.mnbar.org 

A 

FRESH LOOK AT 

THE 

PROBLEM OF 

UNPUBLISHED 

OPINIONS

OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION 

VOLUME LXXIII NUMBER XI 

DECEMBER 2016 

www.mnbar.org 

2 President’s Page 

Juvenile justice and 

redemption 

By Robin M. Wolpert 

4 MSBA in Action 

Minnesota welcomes a new 

generation of attorneys 

6 What, Where & When 

CLEs & events 

8 Professional Responsibility 

Client confidentiality 

and client criticisms 

By Patrick R. Burns 

10 Colleague Corner 

Meet Camille Bryant 

13 Diversity & Inclusion 

Real change is hard. 

And necessary. 

By Cathy Haukedahl 

14 MSBA Blogs 

Dangerous clients: 

Recognizing the risks 

By Michelle Lore 

34 Notes & Trends 

Landmarks in the law 

43 Books & Bytes 

Legal publishing 

ON THE COVER: 

A 


THE 



OPINIONS 

16 

Why it’s time to reconsider 

Minnesota’s approach 

Members of the bar have 

long chafed at the designation of 

appellate opinions as “unpublished.” But 

the concept has many judicial defenders, 

including past and present judges on the 

Court of Appeals. In this article, a justice 

of the Minnesota Supreme Court and his 

former law clerk argue for a middle way 

that would result in more precedent for 

trial courts and arbitrators to apply. 

By Justice David L. Lillehaug 

and Nathan J. Ebnet 

When School’s Out Forever 

Counseling indebted students 

after their school closes 

Recent high-profile school closures, like that of 

ITT-Tech, have left thousands of students across 

the country confused about their legal options. 

By Chris Wysokinski 

20 

Digital Assets After Death 

RUFADAA and its implications 

The Revised Uniform Fiduciary Access 

to Digital Assets Act, which became 

effective in Minnesota earlier this year, 

has largely resolved the Catch-22 that 

faces trustees and estate administrators 

by creating a workable framework for 

disposing of digital assets after death. 

Attorneys who do estate planning work 

should familiarize themselves and their 

clients with its terms. 

By Steven Orloff and 

Matthew J. Frerichs 

24 

44 People & Practice 

Member announcements 

46 Opportunity Market 

Classified ads 

There’s more online 

Leave comments, read digital-only 

articles, and search the article 

archive. Jobs and services are posted 

daily in the opportunity market. 

www.mnbenchbar.com 

28 

Why Your Firm Needs 

an Ethics Partner. Now. 

Recent changes in law make 

it a top priority 

Recent legal developments dictate that 

every law firm in Minnesota should 

designate a firm ethics counsel. First and 

foremost, the law on in-firm attorneyclient 

privilege has undergone a tectonic 

shift—but there are many vital reasons to 

take this step now if you haven’t already. 

By Chuck Lundberg 

www.mnbar.org December 2016 s Bench&Bar of Minnesota 1

President’sPage 

By Robin M. Wolpert 

Juvenile justice and redemption 

It’s the holiday season, and it 

seems like everywhere we turn, we 

encounter messages of redemption. 

From music to movies, from commercials 

to the great classics, we hear 

that the holiday spirit means forgiving 

ourselves and others, repaying debts, 

making things right, and doing the hard 

work required every day to honor our 

word and strive for integrity. 

In the juvenile justice system, redemption 

can mean all of these things. 

But it usually means something else. It is 

one factor in an overall balancing of accountability, 

rehabilitation, and protection 

of public safety. Juvenile offenders 

sometimes commit horrendous crimes. 

Their impact on victims and their families 

is unspeakable. They hit our wall, 

personally and as a society. The U.S. 

Supreme Court has recently directed us 

to move our wall. 

The concept of redemption looms 

large in the U.S. Supreme Court’s 

juvenile justice jurisprudence. The underlying 

premise of its decisions is that 

children are constitutionally different 

from adults in their diminished culpability 

and greater 

prospects for reform. 

The Court 

has forbidden 

the death penalty 

for juvenile 

homicide 

offenders. In 

2012, in Miller 

ROBIN M. WOLPERT 

is a legal strategist, 

litigator, and appellate 

lawyer at Sapientia 

Law Group, where she 

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. 

v. Alabama, the 

Court held that 

the 8th Amendment’s 

prohibition 

of cruel and 

unusual punishment 

forbids 

a sentencing 

scheme that 

mandates life in 

prison without 

the possibility 

of release for 

juvenile homicide 

offenders. 

This year, the 

Court issued its 

much anticipated 

decision 

in Montgomery 

v. Louisiana, ruling that Miller’s prohibition 

on mandatory life without parole 

sentences for juvenile offenders is 

retroactive in cases on state collateral 

(post-conviction) review. 

Under both Montgomery and Miller, 

sentencing a juvenile to life without 

parole is excessive for all but the rare juvenile 

offender whose crime reflects “irreparable 

corruption.” Nevertheless, the 

Court did not ban life sentences without 

the possibility of release for juvenile 

homicide offenders. Instead, the Court 

required that a sentence follow a certain 

process and consider an offender’s youth 

and attendant characteristics before 

imposing a particular penalty. 

The Minnesota Heinous Crimes 

Act (Minn. Stat. §609.106) provides 

that those who commit certain crimes, 

including first-degree premeditated murder, 

shall be sentenced to life without the 

possibility of release. Under Miller, this 

Commission on Juvenile 

Sentencing for Heinous Crimes 

Chairs: Hon. Kathleen Gearin, Ramsey County 

District Court (ret.); and John Kingrey, Minnesota 

Court Attorneys Association 

Members: 

Hon. Paul Anderson, Minnesota Supreme Court (ret.) 

Tom Arneson, Hennepin County Attorney’s Office 

James Backstrom, Dakota County Attorney’s Office 

Jean Burdorf, Hennepin County Attorney’s Office 

Hon. Bradford Delapena, Minnesota Tax Court 

Hon. Christopher Dietzen, Minnesota Supreme 

Court (ret.) ex officio 

Sen. Dan Hall (R), Minnesota Senate 

Sen. Jeff Hayden (DFL), Minnesota Senate 

Rep. John Lesch (DFL), Minnesota House of 

Representatives 

Shelley McBride, independent consultant and 

LMFT; DFO Community Corrections (ret.). 

Kelly Mitchell, Robina Institute of Criminal Law 

and Criminal Justice, University of Minnesota 

Perry Moriarty, University of Minnesota 

Rep. Marion O’Neill (R), Minnesota House of 

Representatives 

Dr. Dawn Peuschold, Hennepin County 

Psychological Services 

Francis Shen, University of Minnesota Law School 

John Turnipseed, Urban Ventures 

William Ward, State of Minnesota Board of Public 

Defense 

Robin Wolpert, Minnesota State Bar Association 

Reporters: Brittany Lawoon, Hennepin County 

Attorney’s Office, and Alexis Watts, Robina 

Institute of Criminal Law and Criminal Justice, 

University of Minnesota 

statute is unconstitutional as applied to 

juveniles. Since 2012, efforts to revise 

this statute and bring it into conformity 

with Miller have been unsuccessful. 

Without legislative action, the courts 

have been working to fashion sentencing 

procedures that comply with Miller. The 

Legislature should revise this statute 

so we don’t have an unconstitutional 

law on the books. We need sentencing 

standards for pending and future 

cases. Addressing sentencing policy on 

a case-by-case basis through the judicial 

process is challenging. 

The U.S. Supreme Court has 

changed the landscape.In Minnesota, 

there are eight juvenile offenders seeing 

post-conviction relief and resentencing. 

By contrast, other states have hundreds, 

and sometimes thousands, of juvenile 

offenders seeking post-conviction relief. 

Minnesota has the opportunity to address 

the issue of sentencing standards 

in a different context than elsewhere. 

Perhaps we can lead the nation in recommending 

new or revised sentencing 

standards, as we did decades ago, when 

Minnesota was the first in the country to 

establish sentencing guidelines. 

The MSBA has created a Commission 

on Juvenile Sentencing for Heinous 

Crimes. It will be chaired by the Hon. 

Kathleen Gearin and John Kingrey. 

Its purpose is to bring together major 

stakeholders and some of the best talent 

in our state to make recommendations 

for bringing our sentencing requirements 

into compliance with Miller and 

Montgomery. It is charged with making 

recommendations regarding the factors 

that should be considered for purposes 

of sentencing juveniles who commit 

crimes under the Heinous Crimes Act, 

including pre-sentence investigations. 

The U. S. Supreme Court has changed 

the landscape. As the Legislature and 

courts continue to address the challenges 

of compliance with Miller and Montgomery, 

the commission’s work will add value to 

that discourse. In the future, the commission’s 

work can serve as a framework for 

addressing emerging juvenile justice issues. 

The MSBA is grateful for the opportunity 

to play a leadership role on this important 

issue. I thank the members of the commission 

for all the work they will do on behalf 

of the public and the state bar. s 

2 Bench&Bar of Minnesota s December 2016 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 

Collaborative Community 

Law Inititiative 

We extend a huge Thank You to our opening sponsors: 

GOLD 

BRONZE 

JGM Properties, LLC 

Karin Ciano Law, PLLC 

SILVER 

© 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. 


MSBAinAction 

Action 

Minnesota welcomes 

a new generation of attorneys 

Some 360 jubilant, newly licensed attorneys attended the fall Swearing-In Ceremony in Saint Paul with their families 

and friends on October 28, 2016. Proud parents, aunts, siblings, and even a daughter requested the Supreme Court to 

admit their relatives by motion. Margaret Fuller Corneille of the State Board of Law Examiners introduced the rest of 

the admittees. Justice Natalie Hudson urged the new attorneys to reflect on their accomplishment, value their integrity and 

reputation above all else, and uphold their professional duty to perform 50 hours of pro bono work each year. MSBA President 

Robin Wolpert reminded the new admittees that they are entering the legal profession at a time of great upheaval. She urged 

them to engage with the MSBA to forge a path ahead for the legal profession. A total of 631 graduates took the bar exam in 

July; 462 passed, a 73.22 percent passage rate. 

Inti Martinez 

Law School: Mitchell Hamline School of Law 

Public Service Recognition for 50+ hours of pro bono work. 

Hometown: Tegucigalpa, Honduras 

What are your plans? I will remain living in the Twin Cities, 

where I started my own full-service civil practice focused 

on the Latino population. There is a huge need for civil law 

attorneys for Latinos and Latinas—beyond immigration law. 

I offer my services on a sliding fee scale, but more inclined to 

low bono fee arrangements. 

What are you most looking forward to about being a licensed 

attorney? Being free to choose my schedule, my clients, and 

my fees. Having practiced law for five years in Honduras, I 

was ready to go back to practice after 

suffering through law school again. 

What do you anticipate to be your 

greatest challenge as a new attorney? 

Because I’m a newcomer to Minnesota, 

I don’t have the connections or the 

clout that many natives have. So 

starting my own practice might be 

challenging as I build a solid base of 

Inti Martinez, 

photographed with his 

sister, Alom Walters 

clients. However, because I foresaw this 

being a problem, I’ve been attending 

most networking events of interest 

since my 1L year. It’s paying off! 

Are you an MSBA member? If so, are you a member of any 

sections? I’m a proud member of the MSBA. The Minnesota 

bench and bar is very competent, collegial and cordial, 

relative to the bench and bar in Chicagoland and Western 

New York (where I’ve lived before). These are some of 

the sections I belong to: Solo/Small, Legal Tech, Race and 

Criminal Justice, Business Law, Civil Litigation, Appellate 

Practice, Consumer Litigation, and Real Property. 

Something you may not know about Inti Martinez: Over 

160 of my attorney colleagues have been assassinated 

in Honduras since 2004—including close relatives and 

friends. I didn’t want to become a victim of this rampant 

violence, so I had to flee persecution in 2013. I started 

from scratch. Leaving a lucrative and seemingly stable legal 

practice was very difficult, but I think I made the right choice. 

The best is yet to come in this marvelous nation. The last 

three to four years have been my “winter” time. Now spring 

is here. I’m excited about all the great opportunities 

Minnesota has to offer! 

Meet your new colleagues 

Will Torhorst 

Law School: University of St. Thomas School of Law; 

Sr. Editor, Journal of Law and Public Policy; Negotiations 

Competition Team; Dean’s Awards in Land Use, Corporate 

Governance, and Federal Income Tax 

Hometown: Lake Geneva, WI 

What are your plans? My wife, daughter 

and I live in Bloomington, and I am an 

associate with Thiel, Anderson & Kukla, 

where I expect to practice estate planning, 

real estate, and business law. 

What are you most looking forward to 

about being a licensed attorney? I am 

looking forward to meeting with clients, 

Will Torhorst 

solving problems, and serving the community 

to the best of my ability. 

and his family 

What do you anticipate to be your greatest challenge as 

a new attorney? Recognizing when I have done enough to 

prepare and when to say, that’s enough...! 

Are you an MSBA member? If so, are you a member of 

any sections? Yes!! I am a member of the following sections: 

Business Law; Construction Law; Corporate Counsel; 

Environmental/Natural Resources/Energy; New Lawyers; 

Probate and Trust Law; Real Property Law; and Solo and 

Small Firm Law. 

Something you may not know about Will Torhorst: My wife 

and I moved from Wisconsin, purchased a new home, and 

had our first child during the first four months of my 1L year. 

Before law school I enjoyed a very rewarding career in the 

areas of land development, commercial construction, sales, 

and small business. I am excited to call on these experiences 

to help create a context, apply the law, and provide effective 

and well-reasoned legal advice to my clients. 

Bethany Thompson 

Law School: Mitchell Hamline School of Law (evening 

program), Cum Laude; two CALI Awards for Excellence 

Hometown: Princeton, MN 

What are your plans? I plan to continue living in St. Paul 

with my husband. I currently work as a law clerk for a firm in 

Eden Prairie, primarily working in the areas of family law and 

also do some work in eminent domain. 

What are you most looking forward to about being a licensed 

attorney? I am looking forward to representing clients now 

that I will be a licensed attorney. 


Are you an MSBA member? If so, are 

you a member of any sections? I am an 

MSBA member and currently a member 

of the Family Law section. 

Something you 

may not know 

about Bethany 

Thompson: 

I worked full-time 

during law school, 

attending the 

evening program at 

Mitchell. I worked 

Bethany Thompson 

for a private school 

all four years during 

the school months and used my summers 

to gain legal experience as a law clerk 

for a number of different firms. I became 

engaged to my now-husband during my 

3L year and planned my wedding my final 

semester of law school. We got married in 

September, following the bar exam. 

Daniel Sevcik 

Law school: University of Minnesota 

Hometown: Cedar Falls, IA 

What are your plans? I plan to both live 

and work in the MSP metro. 

What are you most looking forward 

to about being a licensed attorney? 

Mostly, I’m looking forward to having 

the bar exam in the rearview mirror; its 

permanent passing is only just beginning 

to set in. But in all seriousness, I’m looking 

forward to putting to good use the 

great honor of a law license that is now 

entrusted to me. Having a law license 

means that each and every day I will 

have a unique opportunity to make an 

impact in a person’s life. I think that is 

what most excites me. 

What do you anticipate to be your greatest 

challenge as a new attorney? Learning 

how to practice 

law. I took many 

opportunities 

(clinics, externships, 

law clerk) 

in law school to 

learn the practical 

aspects of practicing 

law. That said, 

Daniel Sevcik 

there are many aspects 

of representing 

clients from beginning to completion 

that have likely never entered my mind. 

I look forward to learning this, but I 

believe it is the single greatest challenge 

that most of us now have to learn. 

Are you an MSBA member? If so, are 

you a member of any sections? Yes, and 

I am a member of many sections. 

You can find special resources for 

new lawyers at www.mnbar.org/NL 

MSBAinAction 

Bar leaders drill 

down in diversity 

workshops 

The MSBA recognizes diversity as 

a core value and has committed 

to making leadership training a 

central component of our diversity and 

inclusion work this year. Last month the 

MSBA hosted another series of diversity 

and inclusion workshops for bar leaders 

with consultant Kathleen Nalty. The goal 

was to deepen our understanding of how 

diversity and inclusion efforts affect the 

practice of law and help us to identify 

concrete steps that bar leaders can take 

to incorporate diversity and inclusion strategies into the work they do through 

the bar association and in their professional lives. Throughout each of the various 

workshops, Nalty focused on teaching skills and providing tools for achieving an 

inclusive environment that will foster sustainable diversity throughout the legal 

profession. She also shared with participants the benchmarking system she uses to 

assess an individual’s or organization’s progress toward diversity and inclusion in the 

legal profession and to offer a path forward with concrete action steps. 

The MSBA is committed to expanding our base of diverse perspectives and 

backgrounds. Leveraging that talent and maximizing the participation of all 

members will help us become a better and stronger bar association. This is an 

imperative for the practice of law in the 21st Century. Thanks to all the members 

of the MSBA Assembly, Council, Diversity and Inclusion Council, Section/ 

Committee Chairs, Diversity Liaisons, District Bar leaders and Affinity Bar leaders 

who participated in these workshops. Visit our webpage at www.mnbar.org/diversity 

to read more about the MSBA’s diversity and inclusion initiatives. 

Coming to my.mnbar.org: 

Compliance community 

A 

new Compliance Community at my.mnbar.org is under development by 

co-moderators Jessica Tjorneho (senior ethics & culture specialist at 

Medtronic) and Stacey Supina (managing director—GRC at Legal Research 

Center). Like other communities at my.mnbar.org, the forum will host conversations 

among like-minded professionals. But the compliance community will also include 

a growing library of blog posts and whitepapers addressing the specific needs of 

compliance professionals. The new forum will also be a place for the growing 

number of students who express interest in compliance careers to begin developing 

their professional reputations. 

“The value of the community,” says Tjorneho, “is as a venue for local ethics & 

compliance professionals to chat about best practices, to help each other overcome 

hurdles we are facing in our jobs and in the profession, and to benchmark and learn 

from each other as it relates to raising the bar for our respective programs.” 

To learn more about this project, contact Mike Carlson (mcarlson@mnbar.org). 

Volunteer for mock trial season 

The MSBA’s high school mock trial is seeking volunteer judges and attorney 

coaches statewide for the upcoming 2017 Mock Trial competitions. The program 

offers an exciting law-related educational opportunity that introduces 

students to the American legal system and provides a challenging opportunity for 

personal growth and achievement. Students will exercise their critical thinking and 

teamwork skills, as well as the basic skills learned in the classroom. 

To learn more about the mock trial program, and to sign up as a volunteer, visit 

www.mnbar.org/mocktrial. 


What,Where&WhenWhen 

Introduction Webinars 

Free for all MSBA members 

Dec 15 • Dec 29 

my.mnbar.org/events/calendar 

BUSINESS & SECURITIES 

s Business & 

Securities Law 

Minneapolis 

Dec 20 • 1.0 Credit 

HCBA 

 

s Midwest Legal 

Conference on Privacy 

& Data Security 

Minneapolis 

Jan 26 • 11.5 Credit 

HCBA 

HOLIDAY RECEPTION 

TUESDAY, DECEMBER 20, 2016 

s Bankruptcy Section 

Holiday Reception 

W.A. Frost and Company, St. Paul 

5:30 -7:30 p.m. 

All are invited to join members of the MSBA’s Bankruptcy Law 

Section for an evening of food, drink and socializing. 

We hope that you can join us for some holiday cheer! 

Register online at www.mnbar.org by December 15. 

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 


Phone: (612) 333-1183 

(800) 882-6722 

www.mnbar.org 

RCBA: 

Ramsey County 


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: jpickles@mnbar.org. 

CIVIL LITIGATION 

s The Expert Witness 

Minneapolis 

Dec 16 • 6.5 Credits 

MCLE 

COMPUTER LAW 

s Cybersecurity and 

Compliance for Clients 

Minneapolis 

Feb 14 • 1.0 Credit 

MSBA 

COMMUNICATIONS LAW 

s Communications Law 

State Legislative Preview 

Minneapolis 


MSBA 

CORPORATE COUNSEL 

s Foreign Corrupt 

Practices Act (FCPA) 

Minneapolis 


HCBA 

DEBTOR/CREDITOR 

s Trends in Mortgage 

Foreclosure Law 

Minneapolis 


HCBA 

FAMILY LAW 

s Advice for Representing 

the Respondent in an 

Order for Protection 

St. Paul 


RCBA 

HEALTH LAW 

s 2017 Legislative 

Preview: Key Health 

Care Issues 

St. Paul 


MSBA 

NEW LAWYERS 

s 2017 New Lawyer 

Experience 

Minneapolis 

Jan 19 • 11.25 Credits 

MCLE 

PRACTICE MANAGEMENT 

s 60 Legal Tips, 

Tricks, Gadgets & 

Websites in 60 Minutes 

Webinar 


MSBA 

PROBATE & ESTATE 

s Celebrity Estate Plan 

Blunders and Successes 

Minneapolis 


MCLE 

s Frequently Encountered 

Income Tax Issues for 

Estate Planners 

Minneapolis 


MCLE 

s Real Estate Gifting 

Issues & Titling Problems 

Minneapolis 


MCLE 

s Snowbird Planning 

Minneapolis 


MCLE 

 

s Advance Care 

Planning and Healthcare 

Directives 

St. Paul 


RCBA 

REAL ESTATE 

s Things to Consider in 

Drafting or Reviewing 

Construction Contracts 

St. Paul 


RCBA 

s Title Insurance 

Endorsements in 

Commercial and 

Residential Transactions 

St. Paul 


RCBA 

SOLO/SMALL FIRM 

s Collateral Consequences 

of Criminal Activity for 

Healthcare Professionals 

St. Paul 


RCBA 

ONLINE COURSES 

Health Law Institute 

JANUARY 2-13, 2017 

s Legal Compliance 

Essentials for Drug, 

Device, and Biotech 

Companies 

s From Addiction to 

Zika: Current Issues in 

Public Health Law 

Applying for: 

15.0 On-Demand CLE Credits 

Register at: 

mitchellhamline.edu/ 

health-law-institute 


WhatWhere&When 

Landmark Center 

s Bill of Rights 225th Anniversary 

December 15 is the 225th anniversary 

of the adoption of the Bill of Rights. A 

free public program commemorating 

the anniversary will focus on other Bill 

of Rights cases involving criminal cases, 

jury trials, and other legal issues. The 

program will be led by local constitutional 

rights lawyer Marshall Tanick of Hellmuth 

and Johnson PLLC. A “town hall” 

format will be followed. The program is 

free but reservations are required. 

Date: December 15, 2016 

Time: 12:00–1:00 p.m. 

Location: Butler Courtroom #326 

For reservations: Call (651) 292-3063 

or email kjohnson@landmarkcenter.org 

Website: www.landmarkcenter.org 

Ramsey County Bar Association 

s Family Law: Women’s Rights in 

Islam Regarding Marriage and Divorce 

The presentation is focused on providing 

practitioners with rights provided to 

Muslim women in marriage and divorce. 

Practitioners will learn about Islamic 

marriage contracts and other issues that 

arise in both marriage and divorce for 

Muslim women. Collateral inheritance 

issues that impact Muslim couples will 

also be addressed, as well as basic information 

about the Islamic faith that is 

necessary to serving Muslim clients. 

Date: January 25, 2017 

Time: 12:00–1:00 p.m. 

Location: St. Paul 

CLE Credits: 1.0 elimination of bias 

credit requested 

Register Online: www.ramseybar.org 

Volunteer Lawyers Network 

s Race and the Justice System: 

Tools for Engaging in Constructive 

Conversations 

As lawyers, we are ethically required 

to work to improve the law, access to 

the legal system and the administration 

of justice. Many would argue that the 

impact of race is one of the most pressing 

issues our legal system faces. But it’s 

hard to address issues of race because 

they are so complex, include elements of 

implicit bias, and often invoke intense 

feelings (overwhelm, anger, shame, guilt, 

and/or helplessness). The difficulties 

can prevent us from fulfilling our ethical 

and even moral obligation to act. This 

CLE reviews some tools that can help us 

meaningfully engage. 

Date: Thursday, January 19, 2017 

Time: 2:00–4:00 p.m. 

Location: HCBA Office, Minneapolis 

CLE Credits: 3.0 elimination of bias 

credits requested 

Register Online: www.vlnmn.org 

Our Trust Group can 

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ERISA DISABILITY CLAIMS 

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ProfessionalResponsibility 

By Patrick R. Burns 

Client confidentiality 

and client criticisms 

The Lawyers Professional 

Responsibility Board (LPRB), 

at its September 30, 2016, 

meeting, voted to adopt 

Opinion 24. The Opinion provides: 

Rule 1.6(a), Minnesota Rules of Professional 

Conduct (MRPC), generally 

prohibits a lawyer from knowingly 

revealing information relating to the 

representation of a client. Contained 

within the subsections of Rule 1.6(b), 

MRPC, however, are eleven enumerated 

exceptions to that general 

prohibition. Amongst those exceptions 

is Rule 1.6(b)(8), MRPC, which 

permits a lawyer to reveal information 

relating to the representation of 

a client provided: 

[T]he lawyer reasonably believes 

the disclosure is necessary to 

establish a claim or defense on 

behalf of the lawyer in an actual 

or potential controversy between 

the lawyer and the client, to 

establish a defense in a civil, 

criminal, or disciplinary proceeding 

against the lawyer based upon 

conduct in which the client was 

involved, or to respond in any 

proceeding to allegations by the 

client concerning the lawyer’s 

representation of the client . . . . 

When responding to comments, 

negative or otherwise, posted on the 

internet (or any other public forum) 

concerning the lawyer’s representation 

of a client, Rule 1.6(b)(8), 

MRPC, does not permit the lawyer 

to reveal information relating to the 

representation of a client. 

Lawyers are cautioned that, when responding 

to comments posted on the 

internet or other public forum which 

are critical of the lawyer’s work, professionalism, 

or other conduct, any 

such response should be restrained 

and should not, under Rule 1.6(b) 

(8), reveal information subject to 

Rule 1.6(a), MRPC. 

What are LPRB Opinions? 

Rule 4(c), Rules on Lawyers 

Professional Responsibility (RLPR), 

authorizes the LPRB to “from time to 

time, issue opinions on questions of 

professional conduct.” LPRB Opinion 

1 acknowledges, “The Board and the 

Supreme Court consider these opinions 

as rule interpretations that guide 

attorneys’ professional conduct even 

though they are not binding on the 

Court.” In In re Admonition Issued in 

Panel File No. 99-42, 621 N.W.2d 240, 

245 (Minn. 2001), the Court discussed 

the effect of LPRB Opinions, stating: 

We therefore recognize Board 

opinions as rule interpretations 

that guide attorneys’ professional 

conduct even though they are not 

binding on this court. Pursuant to 

Rule 4(c), RLPR, Board opinions 

that interpret preexisting rules 

without either effectively creating 

new rules of professional conduct 

or exceeding the scope or plain 

meaning of the rules are entitled 

to careful consideration. However, 

an attorney will not be subject to 

discipline unless there is clear and 

convincing evidence of conduct 

that violates the Minnesota Rules 

of Professional Conduct. 

Thus, while you cannot be 

disciplined for violating Opinion 24—or 

any LPRB Opinion—you should take it 

as the Board’s interpretation of Rule 1.6, 

MRPC, and give it careful consideration 

in guiding your actions. 

Rule 1.6, MRPC 

Rule 1.6(a), MRPC, sets out 

the general rule of confidentiality, 

“Except when permitted under 

paragraph (b), a lawyer shall not 

knowingly reveal information relating 

to the representation of a client.” 

The obligation of confidentiality 

is broader than attorney-client 

privilege, which, in general terms, only 

protects communications between 

a lawyer and client for the purpose 

of giving or receiving legal advice. 

The universe of information covered 

by the confidentiality rule is quite 

large—any information relating to the 

representation, regardless of how or 

from whom the lawyer obtained that 

information. 

As noted in Opinion 24, one of 

the exceptions to the general rule of 

confidentiality is the “self-defense” 

exception in Rule 1.6(b)(8), MRPC, 

that permits disclosure of client 

confidential information under certain 

limited circumstances. In looking at 

that exception and applying it to the 

context of responding to, for instance, 

an internet review critical of an attorney, 

it is necessary to determine whether 

such a review is an “actual or potential 

controversy” or whether an internet 

review is a “proceeding.” 

It seems evident that comments 

regarding a lawyer posted on the 

internet or another public forum should 

not be considered a “proceeding.” 

Black’s Law Dictionary, 7th Edition, 

defines the term “proceeding” as 

“[t]he regular and orderly progression of 

a lawsuit, including all acts and events 

between the time of commencement 

and the entry of judgment” or “Any 

procedural means for seeking redress 

from a tribunal or agency.” 

The term “controversy” is not so 

clearly limited as to plainly preclude the 

conclusion that a posting critical of a 

lawyer is not included in the definition. 

The Board’s Opinion is consistent with 

the weight of authority, which indicates 

that for purposes of attorney/client 

confidentiality, the term ought not to be 

so broadly defined. 

Looking again to Black’s Law 

Dictionary, the first two definitions 

of controversy are, “A disagreement 

or a dispute, esp. in public” and “[a] 

justiciable dispute.” Black’s goes on 

to define a “public controversy” as 

“[a] controversy involving issues that 

are debated publicly and that have 

substantial ramifications for persons 

other than those engaged in it.” A 

public posting of a comment critical of a 

lawyer’s services seems unlikely to have 

substantial ramifications for persons 


ProfessionalResponsibility 

We Congratulate 

Arielle A. Dagen-Sunsdahl 

other than the lawyer and the poster 

of the comment. Thus, it ought not to 

be considered a controversy, public or 

otherwise, warranting application of 

the self-defense exception to Rule 1.6, 

MRPC. 

This interpretation is consistent with 

other jurisdictions that have opined on 

the matter: 

n The Los Angeles County Bar 

Association opined that an attorney 

may publicly respond to 

a former client’s adverse public 

comments so long as the response 

does not disclose any confidential 

information; does not injure the 

former client in any matter involving 

the prior representation; and is 

proportionate and restrained. 1 

n The Pennsylvania Bar Association 

Committee on Legal Ethics 

and Professional Responsibility 

concluded that a lawyer cannot 

reveal confidential information in 

response to a negative online review 

without the client’s informed 

consent. 2 

n The Bar Association of San 

Francisco opined that a lawyer 

may respond to an online review 

by a former client but may not 

disclose confidential information 

about the prior representation absent 

the former client’s informed 

consent. 3 

n The New York State Bar Association 

opined that a lawyer may 

not disclose confidential client 

information solely to respond to 

a former client’s criticism of the 

lawyer posted on a lawyer-rating 

website. 4 

n The Professional Ethics Committee 

for the State Bar of Texas 

opined that a Texas lawyer may 

not publish a response to a former 

client’s negative review on the 

internet if the response reveals any 

confidential information, but may 

post a proportional and restrained 

response. 5 

n The Bar Association of Nassau 

County Committee on Professional 

Ethics opined that a lawyer 

may not disclose confidential 

information to respond to online 

criticism. 6 

All of this is also consistent with 

the Restatement of the Law Governing 

Lawyers. Section 64 of the Restatement 

addresses the “self-defense” exception to 

the general rule of client confidentiality. 

That section provides, in pertinent 

part, “A lawyer may use or disclose 

confidential information when and to 

the extent that the lawyer reasonably 

believes necessary to defend the 

lawyer… against a charge or threatened 

charge by any person that the lawyer… 

acted wrongfully in the course of 

representing a client.” 

Comment c to section 64 talks 

about the kind of charges within 

the exception: “A lawyer may act 

in self-defense under this Section 

only to defend against charges that 

imminently threaten the lawyer or the 

lawyer’s associate or agent with serious 

consequences, including criminal 

charges, claims of legal malpractice, 

and other civil actions such as suits to 

recover overpayment of fees, complaints 

in disciplinary proceedings, and the 

threat of disqualification.” A negative 

online review does not seem to fall 

within the Restatement’s definition of 

what constitutes a “charge.” 

In closing, be cautious in responding 

to negative online reviews and avoid 

disclosing information relating to the 

representation of a client when you 

respond. If you are tempted to disclose 

confidential information online, 

carefully analyze Rule 1.6(b), MRPC, to 

see if you may be permitted to disclose 

that information under an exception 

other than Rule 1.6(b)(8). s 

Notes 

1 

Los Angeles County Bar Association 

Opinion 525 (December 6, 2012). 

2 

Pennsylvania Bar Association 

Committee on Legal Ethics and 

Professional Responsibility Formal 

Opinion 2014-200. 

3 

Bar Association of San Francisco 

Opinion 2014-1 (January 2014). 

4 

New York State Bar Association 

Opinion 1032 (October 30, 2014). 

5 

Professional Ethics Committee for 

the State Bar of Texas Opinion 662 

(August 2016). 

6 

Bar Association of Nassau County 

Committee on Professional Ethics 

Opinion 2016-1 (May 9, 2016). 

PATRICK R. BURNS is 

the deputy director of 

the Minnesota Office of 

Lawyers Professional 

Responsibility. 

Arielle is a new associate 

attorney in our Employee 

Benefits and Transactional 

Law practice groups. 

Employee Benefits Business Law 

Litigation Employment Law 

Health Care Intellectual Property 

andersonhelgen.com 

612.435.6363 


ColleagueCorner 

Meet Camille Bryant 

‘I wanted to have a more direct, 

positive impact on others’ 

Tell us about your work as an assistant public defender. 

I work and advocate for people who have been charged 

with a crime and are unable to afford an attorney. My 

role is to protect my clients in their interactions with the 

criminal justice system. My work includes challenging the 

constitutionality of police conduct, holding the prosecutor 

and the court to the requirements of due process, trial work, 

and, if required, mitigation or minimization at sentencing 

or probation violations. Often my work goes beyond the 

courtroom, including helping clients to find and engage 

in services for mental health or addiction, housing, and 

employment or education opportunities. I have found 

that my clients by and large suffer from a lack of resources 

and systemic exclusion from the opportunities to pursue 

education, family, and career. They are the “canaries in 

the coalmine” pushed to the fringes of our community and 

exposed to the failings and neglect of our society. 

Earlier in your career, you were a chemical engineer. 

What prompted you to go to law school? 

I enjoy problem solving in a way that has a direct, positive 

impact on the quality of people’s lives. As an engineer, I 

worked on pollution reduction, sustainable development, and 

employee health and safety. These areas were of particular 

interest because they were protective of the community. 

The impact, however, was harder to measure in immediate 

and individual terms. Law school was an opportunity to 

learn a different set of skills for a different kind of problemsolving 

with a more immediate and quantifiable impact on 

individual’s well-being. Being a public defender provides the 

opportunity to both help my individual clients and to impact 

systemic change in policing, constitutional rights, 

and community concepts of justice. 

Has practicing law met your goals? 

I feel honored to represent my clients during the difficultly 

and stressful process of criminal court. 

What aspects of your practice are particularly challenging 

and how do you meet those challenges? 

I work in a system where the odds are often overwhelmingly 

against my clients. I listen daily to people who are marginalized 

and sometimes feel beaten and feel ignored. As a public 

defender, I have the legal tools to fight for my clients, but I 

still often experience feelings of powerlessness just as my 

clients must. I have found that engaging in and volunteering 

for committees to develop proactive approaches 

to systemic change has helped me combat the compassion 

fatigue of individual client representation. 

You serve on the board of the Minnesota Association 

of Black Lawyers. Would you tell us about your 

experience with MABL and any particular 

initiatives you’re involved in? 

I’ve been on the MABL board for two years. The 

organization is in a period of reevaluation to ensure 

that we are meeting our membership’s needs and goals. 

One initiative that I started this year is our policy series 

“Legislating Equity.” The purpose of the series is 

to examine the policies that affect our education 

system, housing, health disparities, 

After nearly a decade as an 

engineer at 3M, CAMILLE 

BRYANT left to attend law 

school. She has worked as a 

state public defender since 

graduating from law school. 

and economic development. We 

want to begin the conversation 

about what data-driven policies are 

working, what is not working, and 

what changes would yield better 

outcomes for all communities. s 

10 Bench&Bar of Minnesota s December 2016www.mnbar.org

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Diversity&Inclusion 

Real change is hard. 

And necessary. 

In legal aid programs, it can become easy enough to 

think we’re doing our social justice work, and addressing 

systemic discrimination, simply by serving our clients every 

day. But I’ve come to realize that what we’re already 

doing in our day-to-day work is not nearly enough. 

Legal aid clients throughout Minnesota, as across the 

country, are disproportionately people of color, people with 

disabilities, and women (particularly women with children). 

At Mid-Minnesota Legal Aid (MMLA), we advised and 

represented 10,800 clients in 2015. Of these, 55 percent were 

people of color, 59 percent were women, and more than 

25 percent had either physical or mental disabilities. 

This happens because people of color, people with disabilities, 

and women disproportionately 

have the very low incomes qualifying 

them for legal aid’s services. A family 

of four is eligible for MMLA’s help 

if they have a household income of 

less than $30,375. So we continually 

see in our clients’ lives the impact of 

disparities associated with poverty, 

and specifically, the racial disparities 

that exist in so many areas—employment, 

education, housing, health, 

and incarceration. 

Some of MMLA’s work takes on 

discrimination and disparities directly, 

particularly in certain focused 

areas. For example, our Housing Discrimination 

Law Project has brought 

to justice landlords who discriminate 

based on race and national origin. 

Our Minnesota Disability Law Center 

has sued numerous hospital systems to make them comply 

with the Americans with Disabilities Act’s requirements 

regarding access for people who are deaf. 

But we are asking ourselves, how can we move beyond 

these specialized areas to break down the disparities and 

systemic discrimination our clients face? How can we do more 

to make equal justice a reality? We realize that our day-to-day 

work, while critical to helping our clients on the pathway out 

of poverty, is not sufficient to bring about the broader and 

deeper changes we want to see. 

We’ve also realized that we must start with ourselves. We 

must accept and address our own implicit bias. We must have 

a staff that better reflects our client community. We must 

improve the ways we listen to and hear what our client community 

is saying about their needs. We must develop and use a 

racial equity lens when we do our day-to-day work throughout 

all of our practice areas. 

Why is this important? Because diverse voices identify 

more varied solutions to the seemingly intransigent challenges 

of discrimination and disparity. The initiatives identified offer 

By Cathy Haukedahl 

How do we free up more 

resources to take on race 

disparities in a significant way 

when limited resources force 

us to turn away 60 percent 

of eligible clients who contact 

us, and most of our funding 

requires us to provide specific 

amounts and types of services? 

more creativity. When we include, rather than exclude, we 

build trust in each other and confidence that decisions, processes, 

and systems will operate more fairly. When we stretch 

ourselves to think in a more multi-faceted way, it’s harder to 

fall back on old patterns and stereotypes. We also discover (or 

rediscover) our commonalities as human beings. 

MMLA was fortunate to have the Shriver National Center 

on Poverty Law select a team of our staff to participate in 

the Center’s second-ever Racial Justice Training Institute, a 

several-month online and in-person training on implicit bias 

and developing a racial equity lens in legal aid work. Since the 

training, the team has worked closely with Legal Aid’s senior 

management group to share and implement what the team 

learned, both within Legal Aid and at 

the Minnesota Legal Services Statewide 

Conference in 2015. Members 

of the team are leading two internal 

initiatives with other Legal Aid staff. 

One initiative is examining our effectiveness 

in hiring and retaining 

diverse staff. The other initiative is 

expanding our understanding of implicit 

bias and how better to develop 

a racial justice lens for our work. 

One of our biggest lessons so far 

has been to acknowledge the slow 

pace and difficulty of genuine change. 

For example, how do we free up more 

resources to take on race disparities 

in a significant way when limited resources 

force us to turn away 60 percent 

of eligible clients who contact 

us, and most of our funding requires 

us to provide specific amounts and types of services? How do 

we attract and retain attorneys from diverse backgrounds when 

our salaries are low, and so many people leave law school with 

heavy debt burdens? There are no easy answers. We face continuous 

and hard work if we want to make real change. 

Earlier this year, I read Just Mercy by Bryan Stevenson. Mr. 

Stevenson has committed his entire legal career to challenging 

bias against people of color and the poor in the criminal 

justice system. He founded the Equal Justice Initiative in 

Montgomery, Alabama, where he is executive director. In the 

book, he makes this arresting statement: “The opposite of 

poverty is not wealth; the opposite of poverty is justice.” Lawyers, 

at legal aid programs and elsewhere, 

are uniquely qualified to bring justice to all. 

This is not merely an aspirational goal. It is 

a business and societal imperative. Including 

and hearing all voices will lead us there. s 

CATHY HAUKEDAHL is the executive director of 

Mid-Minnesota Legal Aid. 


MSBABlogs 

www.mnbar.org/blogs 

Dangerous clients: 

Recognizing the risks 

This article was originally published at MSBA 

Small Firm Soapbox. Visit mnbar.org/blogs to 

access Soapbox and other MSBA blogs. 

Minnesota has seen its fair 

share of assaults on lawyers 

over the years. Recent 

trends seem to indicate 

that lawyers are at greater risk of violent 

attack than ever before, likely because 

they often handle highly charged legal 

disputes such as child custody, marital 

dissolution, bankruptcy, and criminal 

charges. While personal security is an 

issue for all attorneys, this is particularly 

true for solo and small firm lawyers— 

who, unlike the large-firm downtown 

lawyers, usually work in buildings that 

don’t require key cards to gain access or 

have security personnel wandering the 

hallways or video cameras focused on 

entryways. 

“Trust your gut,” surviving 

attorney advises 

As part of Minnesota Lawyers 

Mutual Insurance Company’s monthly 

webcast series (available for insureds 

and non-insureds), Todd Scott, MLM’s 

vice-president of risk management, 

recently spoke with Osseo attorney 

Richard Hendrickson, who was shot by 

the opposing party in a legal matter in 

September 2003. During the program— 

“Recognizing Dangerous Clients & 

Mitigating Security Risks”—Scott and 

Hendrickson discussed the shooting, 

the tell-tale signs that Hendrickson was 

dealing with an unbalanced opposing 

party, and the steps lawyers can take to 

reduce the risk that they will become 

victims. Hendrickson’s overriding advice: 

“Trust your gut. Be aware.” 

In Hendrickson’s case, he was representing 

Shelly Joseph-Kordell, who had 

been named conservator/guardian of 

Susan Berkovitz’s father. Berkovitz, who 

was upset by the appointment, proceeded 

to harass and intimidate Kordell 

and Hendrickson in a variety of ways. 

Hendrickson explained that Berkovitz 

demanded to be in control, continually 

fought with others, made illegal attempts 

to access her parent’s money, ranted at 

Kordell on the phone, and constantly 

complained to the court, the police, 

and even the Better Business Bureau. 

Between May 2001 and April 2003, 

Berkovitz filed 10 separate ethics claims 

By Michelle Lore 

against Hendrickson with the Minnesota 

Office of Lawyers Professional Responsibility 

(OLPR). 

Berkovitz started bringing frivolous 

actions against Kordell as well, including 

the harassment proceeding that 

brought Hendrickson and Kordell to the 

Hennepin County courthouse the day of 

the shooting. Berkovitz’s behavior had 

become so bizarre that Kordell requested 

that security accompany them to the 

courtroom. Unfortunately, at that time, 

Hennepin County did not have weapons 

screening mechanisms in place. As 

Hendrickson was reaching into his briefcase 

before the hearing, Berkovitz shot 

him in the neck. She then sought out 

Kordell, who had gone to the restroom. 

Berkovitz found her, shot her four times, 

moved to another floor of the building, 

and then waited for security to take her 

into custody. It was nothing short of a 

miracle that Hendrickson survived, a 

fact he recognizes to this day. But he 

clearly still feels a flood of emotion when 

he talks about his client, who was not so 

fortunate. 

Reasonable certainty of harm 

Hendrickson said that today he 

would recognize the tell-tale signs of a 

dangerous client or opposing party and 

would be “much more careful” in how 

he proceeds when he begins to see those 

signs. But what exactly should lawyers 

do when they are concerned that a 

client may cause harm to them, their 

staff, or the opposing counsel or party? 

Because Minnesota Rule of Professional 

Conduct 1.6 generally prohibits lawyers 

from knowingly revealing confidential 

client information, they can find 

themselves in a conundrum as to how to 

proceed. However, an exception to the 

confidentiality rule involves situations 

where violence may occur. Specifically, 

under Rule 1.6(b)(6), a lawyer may 

reveal information relating to the 

representation of a client if “the lawyer 

reasonably believes the disclosure is 

necessary to prevent reasonably certain 

death or substantial bodily harm.” 

The problem, as Scott and Hendrickson 

acknowledge, is that while the rule 

seems straightforward, it can be tough 

for lawyers to determine whether it’s 

reasonable to believe that the threat of 

harm is reasonably certain. “Lawyers 

don’t often know when to apply that,” 

Scott noted, adding that there is a difference 

between an angry person and a 

crazy person—though that difference 

can be very difficult to detect. 

How to apply the rule 

Citing the “Practitioner’s Guide to 

Risk and Danger in Domestic Violence 

Cases,” Scott pointed to the following 

as factors that evince an elevated risk 

of lethality: stalking; physical acts of 

violence; threats to kill; animal abuse 

or killing pets; damage to property; and 

aggression toward intervenors. 

Scott advised that lawyers who are 

concerned about potential violence by 

a client should get some advice from an 

ethics expert or the OLPR. Hendrickson 

suggested doing that as quickly as 

possible. 

Keep firm members safe 

In terms of keeping your firm members 

safe, Hendrickson and Scott recommended 

talking to staff and discussing 

with them their safety concerns and how 

they would react to an incident. Know 

how to contact security personnel or the 

police. Discuss code words and have an 

escape plan. Finally, they said it’s important 

to get to know your clients: Do they 

own guns? Have they been violent in 

the past? Do they exhibit acts or make 

threats associated with risk or lethality? 

“Listen to your gut,” said Hendrickson. 

“If your gut tells you something is wrong, 

look at it.… Because if you make a mistake, 

look at what can happen.” 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. 


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THE 



OPINIONS 

WHY IT’S TIME TO RECONSIDER MINNESOTA’S APPROACH 

Members of the bar have long chafed at the designation of appellate opinions 

as “unpublished.” But the concept has many judicial defenders, including past and 

present judges on the Court of Appeals. In this article, a justice of the Minnesota 

Supreme Court and his former law clerk argue for a middle way that would result 

in more precedent for trial courts and arbitrators to apply. 

By Justice David L. Lillehaug and Nathan J. Ebnet 


When the Minnesota judicial 

branch surveys 

attorneys, the appellate 

courts receive excellent 

reviews, except on two 

subjects. First, attorneys are concerned 

that the Minnesota Supreme Court takes 

too long to issue its opinions. The court 

is working on that; for example, the court 

now internally circulates draft opinions 

electronically. The second concern is 

that too many Minnesota Court of Appeals 

opinions are not precedential. Last 

year, 92 percent of the Court of Appeals’ 

opinions were “unpublished.” This concern, 

along with Justice Lillehaug’s experiences 

with unpublished opinions (both 

as a lawyer and as a justice who considers 

petitions for review), prompt us to take 

a fresh look at the subject and to make 

some modest suggestions for change. 

The Legislature created 

unpublished opinions 

The Minnesota Court of Appeals 

was created in 1982 when the Minnesota 

Legislature enacted Chapter 480A 

of the Minnesota Statutes. 1 The original 

version of section 480A.08 said nothing 

about whether the new court’s opinions 

should be published. Neither did the 

1983 amendment to the statute. 2 

As the Court of Appeals began to issue 

its opinions in volume, it became 

clear that practitioners had to read more 

cases. Some questioned whether Minnesota 

needed “all this law.” We suspect 

these questions were prompted, in part, 

by the fact that, in the mid-1970s, the 

federal courts of appeals started to issue 

opinions designated “unpublished.” 3 Unpublished 

opinions were not typically citable 

or accorded any precedential value. 

Many states soon followed suit. 

In 1986, the Minnesota State Bar Association’s 

Judicial Administration Committee 

conducted a survey on whether 

the Court of Appeals should continue to 

publish all of its opinions. 

The result? “[A]n overwhelming majority 

of the practitioners favor continued 

publication of all opinions.” 4 

Despite the bar’s strong preference for 

publication, just one year later the Minnesota 

Legislature amended Minn. Stat. 

§480A.08 to provide for unpublished 

opinions. The statute stated: 

The court of appeals may publish 

only those decisions that: (1) establish 

a new rule of law; (2) overrule 

a previous court of appeals’ decision 

not reviewed by the supreme 

court; (3) provide important procedural 

guidelines in interpreting 

statutes or administrative rules; 

(4) involve a significant legal issue; 

or (5) would significantly aid in the 

administration of justice. 5 

The statute further provided that unpublished 

opinions are “not precedential” 

and, with limited exceptions, may not be 

cited for a binding rule of law. 

The 1987 version of section 

480A.08—like today’s version—required 

any party citing an unpublished opinion 

to provide a “full and correct copy to all 

other counsel at least 48 hours before its 

use in any pretrial conference, hearing, or 

trial.” 6 If cited in a brief or memorandum 

of law, “a copy of the unpublished opinion 

must be provided to all other counsel 

at the time the brief or memorandum 

is served.” 7 Today, the text of the 1987 

amendment is located at paragraph (c) of 

Minn. Stat. §480A.08, subd. 3. 

In 1989, section 480A.08, subdivision 

3, was amended a final time. That 

amendment—located at paragraph (b)— 

clarifies that a Court of Appeals decision 

need not include a written opinion. 8 A 

statement of decision without a written 

opinion may not be officially published 

and must not be cited as precedent, except 

as law of the case, res judicata, or 

collateral estoppel. 9 

The result of the Legislature’s restriction 

on Court of Appeals opinions was 

dramatic. In 1988, the court issued 706 

unpublished opinions and 611 published 

opinions. 10 By 1994, the percentage of 

published opinions had dropped substantially. 

That year, the court issued 1,007 unpublished 

opinions and only 274 published 

opinions. 11 In other words, in less than a 

decade, the percentage of unpublished 

opinions soared to well over 70 percent. 

Separation of powers 

considerations 

In our view, the restrictions in section 

480A.08 on the publication and precedential 

value of appellate decisions are 

almost certainly unconstitutional as a violation 

of the separation of powers. Unlike 

the United States Constitution, the 

Minnesota Constitution expressly speaks 

to such separation. It provides: “The 

powers of government shall be divided 

into three distinct departments: legislative, 

executive and judicial. No person or 

persons belonging to or constituting one 

of these departments shall exercise any of 

the powers properly belonging to either 

of the others except in the instances expressly 

provided in this constitution.” 12 

The power to decide which opinions 

to issue and disseminate is at the heart of 

the judicial function. So is the power to 

decide which decisions are precedential 

and how to apply them. 

The test for whether a statute invades 

a judicial function turns on “whether 

the statute deals with substantive or 

procedural law.” 13 The “judicial branch 

governs procedural matters, while the 

creation of substantive law is a legislative 

function.” 14 Legislative interference with 

procedural matters is only permitted as a 

matter of comity. 15 

The rules that govern opinions seem 

to be procedural in nature. Nowhere in 

the Minnesota Constitution is the Legislature 

given special authority to regulate 

those procedures. 16 

There is another, less obvious, constitutional 

issue posed when the judiciary 

agrees or decides that its opinions 

will not be precedential. This issue was 

articulated by one of Justice Lillehaug’s 

judicial role models, the late Chief Judge 

Richard Arnold of the U.S. Court of Appeals 

for the 8th Circuit. Judge Arnold 

was a fierce opponent of unpublished 

decisions. In his view, a non-precedential 

opinion “expands the judicial power beyond 

the limits set by Article III by allowing 

us complete discretion to determine 

which judicial decisions will bind us and 

which will not. Insofar as it limits the 

precedential effect of our prior decisions, 

the Rule [regarding unpublished opinions] 

is therefore unconstitutional.” 17 

The Minnesota Supreme Court’s 

response: Comity 

Rather than resisting the legislative 

intrusion on the judicial branch’s power, 

the Advisory Committee on the Rules of 

Civil Appellate Procedure and, ultimately, 

the Supreme Court, went along. In 

1998, Minnesota Rule of Civil Appellate 

Procedure 136.01 was amended to mirror 

section 480A.03, subd. 3. As amended, 

Rule 136.01, subd. 1 states: 

(a) Each Court of Appeals disposition 

shall be written in the form of 

a published opinion, unpublished 

opinion, or an order opinion. 

(b) Unpublished opinions and order 

opinions are not precedential except 

as law of the case, res judicata or 

collateral estoppel, and may be cited 

only as provided in Minnesota Statutes 

§480A.08, subd. 3 (1996). 18 

The adoption of Rule 136.01 is consistent 

with the Minnesota Supreme Court 

practice of using the doctrine of “comity” 

to avoid clashes with the Legislature by 

adopting rules similar to legislation. For 

example, the Court declared unconstitutional 

legislative restrictions on access 

to records of juvenile offenders, but then 

adopted a juvenile delinquency rule that 

partially incorporated those restrictions. 19 


Similarly, the Court adopted as a rule of evidence 

Minnesota Statutes §634.20, which 

allowed evidence of domestic conduct by 

the accused against family or household 

members other than the victim. 20 

Together, Minn. Stat. §480A.08, subd. 

3, and Rule 136.01 are the foundation for 

the law on unpublished opinions. 

The appellate courts justify 


Two Minnesota cases discuss the rationale 

for unpublished opinions: (1) Dynamic 

Air, Inc. v. Bloch, 502 N.W.2d 796 

(Minn. Ct. App. 1993); and (2) Vlahos v. 

R & I Construction of Bloomington, Inc., 

676 N.W.2d 672 (Minn. 2004). 

In Dynamic Air, the Minnesota Court 

of Appeals explained, for the first time, 

its interpretation of section 480A.08: 

Unpublished opinions of the Court 

of Appeals are not precedential. 

Minn. Stat. §480A.08, subd. 3(c) 

(1992). At best, these opinions can 

be of persuasive value. For example, 

a party may cite to an unpublished 

opinion affirming a trial court’s 

exercise of discretion to persuade 

a trial court to exercise discretion 

in the same manner. It is, however, 

improper to rely on unpublished 

opinions as binding precedent. 

We note also that the use of 

such opinions has the potential to 

result in profound unfairness. Attorneys 

who have access to computerized 

research systems are able 

to find unpublished opinions with 

facts apparently similar to their 

case. Attorneys who cannot afford 

these services, however, are at a 

disadvantage, as they are unable 

to find those unpublished opinions 

supporting their cases. Because the 

full fact situation is seldom set out 

in unpublished opinions, the danger 

of mis-citation is great. 

The legislature has unequivocally 

provided that unpublished opinions 

are not precedential. We remind 

the bench and bar firmly that 

neither the trial courts nor practitioners 

are to rely on unpublished 

opinions as binding precedent. 21 

A decade later, the Minnesota Supreme 

Court agreed with the Court of 

Appeals’ assessment of the limited value 

of unpublished opinions. In Vlahos, the 

Court criticized a district court’s reliance 

on an unpublished opinion of the Court 

of Appeals: “[W]e pause here to stress 

that unpublished opinions of the court 

of appeals are not precedential. The danger 

of miscitation is great because unpublished 

decisions rarely contain a full 

recitation of the facts. Unpublished decisions 

should not be cited by the district 

courts as binding precedent.” 22 

With the encouragement of Dynamic 

Air and Vlahos, the percentage of opinions 

issued in unpublished form continued 

to rise. By 1994, the percentage had 

risen to 73 percent. By 2005, 86 percent 

of opinions were unpublished. Last year, 

2015, 92 percent of opinions were unpublished. 

The problems with unpublished 

opinions 

The Court of Appeals’ interpretation 

of section 480A.08 in Dynamic Air—approved 

by the Minnesota Supreme Court 

in Vlahos—has been criticized by attorneys 

and commentators. 23 Specific criticisms 

include: 

1Too many important opinions 

that would be good precedent 

are designated as unpublished. 

Many experienced practitioners remember 

interesting, even groundbreaking, 

opinions that, to their 

surprise, were not published. Justice 

Lillehaug remembers two such cases 

from his private practice. The issues 

were weighty. In both cases, the 

Supreme Court granted review and 

reversed. 

2In an era where more disputes 

are being arbitrated, having 

more civil precedent would be helpful 

to both district courts and arbitrators 

as they try to apply the law. 

Even when they don’t break new 

3 legal ground, some unpublished 

opinions contain significant analyses 

of facts worthy of publication. 24 

4The concern in Dynamic Air 

about attorneys having access 

to Court of Appeals decisions is entirely 

outdated. The West Publishing 

monopoly is over. Unpublished 

opinions are as easy to find electronically 

as published ones. 

Although the high percentage of 

unpublished opinions is perennially unpopular 

in the bar and in the academy, 

there are many judicial defenders of 

the concept, including past and present 

judges on the Court of Appeals. They argue 

that unpublished decisions allow the 

Court of Appeals to better handle a large 

caseload without sacrificing the rights of 

the parties or creating unnecessary precedent. 

25 Opinions to be published receive 

greater scrutiny; they circulate for review 

and comment to all of the judges on the 

Court of Appeals. Unpublished opinions 

circulate to only half of the judges. 

In other words, judges contend, unpublished 

opinions enable the Court of Appeals 

to function efficiently day-to-day as 

an error-correcting court. 26 

Unpublished opinions are 

reviewed by the Supreme Court 

The Minnesota Supreme Court grants 

or denies petitions to review cases from the 

Court of Appeals based on the criteria of 

Minnesota Rule of Civil Appellate Procedure 

117, subd. 2. The criteria for review 

in Rule 117 are remarkably similar to the 

criteria for publication in section 480A 

and Rule 136.01. Thus, assuming that 

both courts properly apply their criteria, it 

should be highly unlikely that the Supreme 

Court would ever grant a petition to review 

an unpublished decision of the Court 

of Appeals. Or so one would think. 

But that assumption would be wrong. 

For example, in 2013-14, the Supreme 

Court granted 165 petitions for review. 

Of those, 88 of the grants, or 51 percent, 

were from unpublished decisions. The 

Supreme Court reversed the Court of Appeals 

in 17, or 35 percent, of those cases. 

Clearly, there are many times when 

the Court of Appeals and the Supreme 

Court do not see eye to eye on what constitutes 

an important statewide case or a 

significant point of law. Is it possible that 

the Court of Appeals is being too selfeffacing 

in designating only 8 percent 

of its cases as precedent-worthy? Justice 

Lillehaug thinks so. As a result, when he 

casts his vote for or against a petition for 

review, he no longer gives any weight to 

whether the Court of Appeals opinion is 

published or unpublished. 

The national trend against 


The Court of Appeals’ increasing reliance 

on unpublished opinions stands in 

stark contrast to the national trend. In 

2006, the tide began to roll back at the 

federal level. Federal Rule of Appellate 

Procedure 32.1 was enacted to provide 

uniformity for citations to federal unpublished 

opinions. 27 The rule provides 

that a federal court may not prohibit or 

restrict the citation to unpublished opinions 

issued on or after January 1, 2007. 

Recently, many states have decided 

to abandon or pare back their systems of 

unpublished opinions. More than half the 

states now either permit citation of, or 

no longer issue, unpublished opinions. 28 

Since 2004, at least 13 states—Alaska, 

Arkansas, Hawaii, Kansas, Louisiana, 

New Mexico, North Carolina, Ohio, 

Pennsylvania, Texas, Utah, Wisconsin, 

and Wyoming—have begun to permit 


citation of unpublished opinions, now accord 

precedential value to unpublished 

opinions, or have stopped issuing unpublished 

appellate opinions altogether. 29 

What should be done 

Out of great respect for the Court of 

Appeals judges and their sizable workloads, 

we are not prepared to suggest that 

Minnesota abandon non-precedential 

opinions, notwithstanding the national 

trend. But we have some ideas for improvement. 

First, the Legislature should repeal 

section 480A.08, subd. 3, as an infringement 

on the judicial branch’s authority. 

The Legislature should not be, and 

should not want to be, in the business of 

telling the courts when and how to issue 

and apply their own opinions. 

Second, the Court of Appeals should 

try to issue more precedential opinions. 

Simply put, it cannot be that 92 percent 

of its opinions involve no significant legal 

issues. Likely an initial target of doubling 

the percentage of decisions as precedential 

would not materially affect the management 

of a large case load. The Minnesota 

Court of Appeals is a strong, vibrant 

institution with 19 well-qualified judges. 

We suspect that most judges on a panel 

invest their time and careful attention in 

each case regardless of whether the opinion 

is to be published or not. And Court 

of Appeals policy is that every opinion is 

reviewed by at least nine judges, including 

the chief judge, and by experienced 

Court of Appeals staff attorneys. 30 

The Legislature should 

not be, and should 

not want to be, in the 

business of telling the 

courts when and how 

to issue and apply their 

own opinions. 

Third, the Advisory Committee on 

the Minnesota Rules of Appellate Procedure 

might consider a rules change 

whereby unpublished Court of Appeals 

opinions deemed especially significant 

by the bar could be upgraded to precedential 

status. A subcommittee could 

promptly review unpublished Court of 

Appeals opinions as they are issued. The 

subcommittee could petition the Court 

of Appeals to change the designation to 

precedential. 

Fourth, because all Court of Appeals 

decisions are available online to all attorneys, 

the designations “published” 

and “unpublished” should be changed to 

“precedential” and “non-precedential.” 

Finally, the rule that special notice need 

be given when a non-precedential decision 

is cited should be stricken. 

We hope that these thoughts and our 

proposals for more appellate precedent 

will renew and refresh the discussion. s 

DAVID L. LILLEHAUG is 

an Associate Justice 

of the Minnesota 

Supreme Court. 

DAVID.LILLEHAUG 

@COURTS.STATE. 

MN.US 

NATHAN J. EBNET 

was a law clerk to 

Justice Lillehaug and 

now practices in the 

trial department of 

Dorsey & Whitney in 

Minneapolis. 

EBNET.NATHAN@ 

DORSEY.COM 

Notes 

1 

Act of Mar. 22, 1982, ch. 501, 1982 

Minn. Laws 569. 

2 

There is an urban legend that 

unpublished opinions were part of 

the legislative bargain that created 

the Court of Appeals. Our research 

provides no support for that legend. 

3 

David R. Cleveland, Appellate Court 

Rules Governing Publication, Citation, 

and Precedential Value of Opinions: 

An Update, 16 J. of App. Prac. & 

Process 257, 257 (2015). 

4 

Committee and Section Reports 1985- 

86, Bench & Bar of Minn., May/ 

June 1986, at 32 (emphasis added). 

5 

Act of June 12, 1987, ch. 404, sec. 

182, 1987 Minn. Laws 3490, 3622. 

6 

Id. 

7 

Id. 

8 

Act of June 3, 1989, ch. 335, art. 1, 

sec. 256, 1989 Minn. Laws 2693, 

2894. 

9 

Minn. Stat. §480A.08, subd. 3(b). 

10 

Lawrence R. McDonough, To Be or 

Not To Be Unpublished: Housing Law 

and the Lost Precedent of the Minnesota 

Court of Appeals, 35 Hamline L. 

Rev. 1, 22 (2012). 

11 

Id. The numbers do not include 

unpublished order opinions. 

12 

Minn. Const. art. III, §1. 

13 

State v. Lindsey, 632 N.W.2d 652, 

658 (Minn. 2001). 

14 

State v. Lemmer, 736 N.W.2d 650, 

657 (Minn. 2007) (citing State 

v. Johnson, 514 N.W.2d 551, 554 

(Minn. 1994)). 

15 

Id. 

16 

Minn. Const., arts. III-IV. 

17 

Anastasoff v. United States, 223 F.3d 

898, 905 (8th Cir. 2000) (R. Arnold, 

J.), opinion vacated on reh’g en banc, 

235 F.3d 1054 (8th Cir. 2000). 

18 

Minn. R. Civ. App. P. 136.01. 

19 

See Minnesota R. Juvenile Delinquency 

P. 30.02. 

20 

See State v. Fraga, 864 N.W.2d 615, 

627 (Minn. 2014). 

21 

Dynamic Air, 502 N.W.2d at 800- 

01. 

22 

Vlahos, 676 N.W.2d at 676 n.3. 

23 

See, e.g., Chad M. Oldfather, 

Other Bad Acts and the Failure of 

Precedent, 28 Wm. Mitchell L. Rev. 

151, 178 n.116 (2001) (arguing 

that unpublished opinions receive 

less attention and are decided less 

carefully compared to published 

opinions); Alice S. Brommer, 

Dealing Effectively with Unpublished 

Cases: Non-Precedential Authority 

May be Persuasive, Minn. Law., Dec. 

6, 1999, at 1 (noting attorneys’ 

concern that the decision on 

whether to publish is not always 

clear); Jennifer K. Anderson, 

Comment, The Minnesota Court of 

Appeals: A Court Without Precedent?, 

19 Wm. Mitchell L. Rev. 743, 760- 

63 (1993) (arguing that a lack of 

published opinions makes it difficult 

to know what the law in an area 

really is). 

24 

McDonough, supra note 11, at 20. 

25 

See, e.g., Peter S. Popovich, Ten 

Years Later: Justice Delayed Is No 

More, 19 Wm. Mitchell L. Rev. 581, 

585 (1993); D.D. Wozniak, A True 

Success Story, 19 Wm. Mitchell L. 

Rev. 589, 589-90 (1993). 

26 

See McDonough, supra note 11, at 

20. 

27 

Cleveland, supra note 4, at 257. 

28 

Id. at 258. 

29 

Id. 

30 

If additional review within the 

Court of Appeals is required so that 

more opinions can be published, the 

requirement that the panels issue 

their decisions within 90 days of 

oral argument could be waived. See 

Minn. Stat. §480A.08, subd. 3(a). 


Digital Assets 

After Death 

RUFADAA and 

its implications 

The Revised Uniform Fiduciary Access to 

Digital Assets Act, which became effective 

in Minnesota earlier this year, has largely 

resolved the Catch-22 that faces trustees and 

estate administrators by creating a workable 

framework for disposing of digital assets after 

death. Attorneys who do estate planning 

work should familiarize themselves 

and their clients with its terms. 

By Steven Orloff and Matthew J. Frerichs 


Cloud computing has made 

our lives much easier, but it 

has made our deaths more 

complex. Increasingly, our 

most significant physical 

possessions are taking on digital form. 

Photographs, letters, bank statements, 

even currency itself—these are just a few 

of the things that were known to us primarily 

as physical objects less than a generation 

ago, but which many of us now 

store digitally. 

The “digital assets” that people own 

today include those that have physical 

analogs (for instance, letters and music) 

as well as those that do not (for instance, 

social media accounts). If such assets 

were held in the physical possession of a 

deceased person—on a computer, flash 

drive, or other device—they could be 

distributed in much the same manner as 

tangible property. Frequently, however, a 

decedent’s digital assets are maintained 

on the servers of a third party such as 

Facebook, Google, or an online bank. 

Until recently, this situation placed estate 

administrators in a troubling limbo. 

On the one hand, they have an obligation 

to gather and manage all of a decedent’s 

assets. On the other, they face 

imposing obstacles to accessing digital 

assets, including restrictive terms-of-service 

agreements and federal anti-hacking 

statutes. 

Digital assets have risen to prominence 

in our culture so quickly that 

legislatures are only now stepping in to 

clarify things. This past August, the Revised 

Uniform Fiduciary Access to Digital 

Assets Act (RUFADAA) became 

effective in Minnesota and is codified 

as Minnesota Statutes §521A.01, et seq. 

(2016). As of July, 17 other states had 

passed versions of RUFADAA, and 13 

others had introduced it in their legislatures. 

The act has largely resolved the 

Catch-22 that faces estate administrators 

by creating a workable framework 

for disposing of digital assets after death. 

As such, it is worthwhile for Minnesota 

lawyers to understand the basics of the 

statute, and also to understand basic best 

practices that their clients should implement 

in order to take advantage of its 

protections. 

Overview of RUFADAA 

The purpose of RUFADAA is 

straightforward. As its drafters at the 

Uniform Law Commission (ULC) put it, 

the act “gives Internet users the power to 

plan for the management and disposition 

of their digital assets in a similar way as 

they can make plans for their tangible 

property.” 1 

Arriving at the statutory language 

that achieves this objective was a far less 

simple matter. Before RUFADAA, there 

was UFADAA, the original Uniform Fiduciary 

Access to Digital Assets Act. 

Like RUFADAA, UFADAA attempted 

to resolve the difficulties facing executors, 

estate administrators, and others 

(RUFADAA uses the umbrella term 

“fiduciaries”) in accessing and distributing 

digital assets. The approach that 

UFADAA took to the issue was a simple 

one. It merely stated that existing law applicable 

to fiduciaries—which authorizes 

them to stand in the shoes of a deceased 

person for purposes of recovering his or 

her tangible property—also applied when 

fiduciaries sought access to digital assets. 

While it had the benefit of simplicity, 

the approach proved disagreeable to 

technology companies. Those companies, 

which maintain user accounts containing 

digital assets and include the likes of Apple 

and Yahoo, are known as “custodians” 

under RUFADAA. Numerous custodians 

joined in a successful campaign against 

UFADAA, arguing among other things 

that the law, in giving fiduciaries access to 

the contents of email messages and other 

personal documents of the decedent, violated 

their users’ privacy. They also argued 

that UFADAA simply placed them, as opposed 

to fiduciaries, between a rock and a 

hard place, legally speaking. They pointed 

to a 1980s-era federal statute, the Stored 

Communications Act (SCA), which arguably 

prohibits custodians from turning 

over a user’s account to a third party. 

(The statute provides a “lawful consent” 

exception, but does not speak to the issue 

of whether a fiduciary, by virtue of its position 

alone, has such consent.) Custodians 

claimed that the UFADAA would require 

them to violate the SCA. 

The tech industry drafted competing 

legislation, known as the Privacy 

Expectation Afterlife and Choices Act 

(PEAC). PEAC, however, had its own 

limitations, including a limited scope—it 

included email communications, for instance, 

but not other digital assets like 

cloud-stored files and blogs—and the 

burdensome need to obtain a court order 

formally authorizing a fiduciary to access 

a decedent’s digital property. 

Ultimately, custodians and the Uniform 

Law Commission agreed to the approach 

embodied in RUFADAA, which 

takes account of the tech industry’s objections 

to the original legislation. Specifically, 

it limits a fiduciary’s access to 

the substance of certain digital content, 

unless the decedent affirmatively authorized 

it. In describing RUFADAA, the 

ULC states: 


This act extends the traditional 

power of a fiduciary to manage 

tangible property to include management 

of a person’s digital assets. 

The act allows fiduciaries to manage 

digital property like computer files, 

web domains, and virtual currency, 

but restricts a fiduciary’s access to 

electronic communications such as 

email, text messages, and social media 

accounts unless the original user 

consented in a will, trust, power of 

attorney, or other record. 2 

While RUFADAA is more complex than 

its predecessor, it is clear enough. Under 

RUFADAA, the extent to which a fiduciary 

can access the digital assets of a decedent 

is dictated by one of several sets of 

terms, in descending order of authority. 

n Online tool: Under RUFADAA, 

custodians can create an “online 

tool,” separate from their terms of 

service, through which users can 

determine the extent to which 

their digital assets are revealed to 

third parties, including fiduciaries. 

(On Facebook, the online tool is 

known as Facebook Legacy Contact.) 

If a user has provided direction 

through the online tool, it will 

supersede conflicting directives, 

including those in a will. 3 

n Will, trust, or power of attorney: 

The user can authorize access 

to his or her assets after death 

through a will or trust and, during 

his or her lifetime, through a power 

of attorney. 4 

n Terms of service: If the user has 

not provided direction, the custodian’s 

terms of service apply. 

n RUFADAA default rules: If the 

terms of service do not cover the 

issue, RUFADAA’s default rules 

apply. Those default rules recognize 

multiple types of digital assets. 

For certain digital assets, like 

virtual currency, RUFADAA gives 

fiduciaries unrestricted access. For 

electronic communications, however, 

the statute does not provide 

fiduciaries access; instead, it allows 

them to access a “catalog” of communications 

consisting of metadata 

such as the addresses of the 

sender and recipient, as well as the 

date and the time the message was 

received. 

For all actions taken in good faith under 

RUFADAA, custodians receive the legal 

protection of immunity. 5 

Best practices 

Users should consider availing themselves 

of the online tool option whenever 

it’s offered, and in certain instances it 

will make sense to exercise that option. 

Of course, online tools only apply to the 

individual sites on which they appear. 

Users can secure blanket protection for 

themselves by including digital assets in 

their estate planning documents. They 

should include language identifying the 

fiduciary and the extent of access that he 

or she should be given to the user’s digital 

assets. (The documents should also 

make it clear that the provisions should 

be considered lawful consent under the 

Stored Communications Act and other 

relevant statutes.) 

In conjunction with this estate planning, 

users should maintain an updated 

inventory of their digital assets, including 

accounts and passwords. They should be 

careful about revealing that inventory 

to third parties, however, as it presents a 

possible claim of a violation of the Computer 

Fraud and Abuse Act, in the event 

that a site’s terms of service prevent password 

sharing with third parties, as some 

do. 

Lawyers will want to become familiar 

with the terms of service of various 

sites—especially those in which their 

clients hold significant digital assets. Yahoo’s 

terms of service, for instance, indicate 

that “any rights to your Yahoo ID or 

contents within your account terminate 

upon your death,” raising uncertainty 

over the extent to which a fiduciary 

could access them. 6 

Finally, lawyers should be aware of 

the choice-of-law provisions in various 

terms of service. Many point to California, 

where RUFADAA took effect at the 

end of September. If the terms select the 

law of a state where RUFADAA does not 

govern, however, there will be an argument 

that the fiduciary is back in the 

dreaded state of limbo. 

While the digital revolution has introduced 

great convenience into our lives, 

it has also introduced great complexity 

into estate administration. By passing 

versions of RUFADAA, Minnesota and 

other states have mitigated some of that 

complexity and confusion. To secure the 

advantages offered by that statute, however, 

lawyers and their clients must actively 

make plans now for the disposition 

of their digital assets after death. s 

Notes 

1 

Uniform Law Comission, “The 

Revised Uniform Fiduciary Access 

to Digital Assets Act: A Summary” 

(http://www.uniformlaws.org/shared/ 

docs/Fiduciary%20Access%20to%20 

Digital%20Assets/Revised%202015/ 

Revised%20UFADAA%20-%20 

Summary%20-%20March%202016. 

pdf) 

2 

Fiduciary Access to Digital Assets 

Act, Revised (2015) (Description): 

http://www.uniformlaws.org/ 

Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20 

Act,%20Revised%20(2015) 

3 

Minnesota Statutes §521A.04(a). 

4 

Minnesota Statutes §521A.04(b). 

5 

Minnesota Statutes §521A.16(f). 

6 

Yahoo Terms of Service, Section 28 

(“General Information”). 

STEVEN ORLOFF is a partner in Robins 

Kaplan’s Estate and Trust practice group. 

SORLOFF@ROBINSKAPLAN.COM 

MATTHEW J. FRERICHS is a principal 

in Robins Kaplan’s Estate and Trust 

practice group. 

MFRERICHS@ROBINSKAPLAN.COM 


Directories 

Communicate with colleagues and clients by completing your 

MSBA Directory profile at www.mnbar.org/directories 

The directories have been great since they were 

introduced. I’ve had attorneys contact me to 

collaborate and partner on cases and new clients that 

otherwise would have never found my name, expertise 

and contact info. The market exposure for professionals 

and potential clients has been great and I strongly 

recommend the free service to all members of the bar. 

– Chris Head, Minneapolis 

The MN Find a Lawyer and MSBA Colleague 

directories are a great benefit to bar members. 

Within days of completing my profile, I had a client 

contact me. The process for signing up is so easy, 

I registered using my smartphone while on a car 

trip one weekend. 

– Sherri Krueger, Minnetonka 

I use MN Find a Lawyer because it allows me to 

introduce myself to potential clients at their convenience. 

It also gives people looking for a lawyer as much 

information as they could want about me. This directory 

is as essential to my practice as my computer and smart 

phone. I won’t practice without the three of them. 

– Paul Carlson, Wadena 

For over 30 years, the Colleague Program has been a 

valuable resource for my practice. Now online in an easy 

to complete profile, I get quick answers and direction in 

areas of law outside my primary practice. By serving as 

a Colleague panelist, I have received referrals from other 

attorneys when they get in over their heads. 

– David Anderson, Eden Prairie

WHEN SCHOOL’S OUT FOREVER 

Counseling indebted students after their school closes 

Recent high-profile school 

closures, like that of ITT- 

Tech, have left thousands of 

students across the country 

confused about their legal 

options. 1 Closer to home, the Minnesota 

Attorney General has obtained an order 

that might lead local schools like the 

Minnesota School of Business and Globe 

University to close certain campuses or 

have their authorization revoked. 2 Most 

attorneys are all too familiar with paying 

student loans, but few have experience in 

helping clients who are encumbered by 

debt left after a school has closed. This 

brief update, while certainly not all-encompassing, 

should provide readers with 

a starting point to advise those saddled 

with debt from a closed school. 

Closed school discharge 

option for federal loans 3 

For those with federal student loans, 

the closed school discharge is the widest 

reaching remedy. The Higher Education 

Act HEA) requires the Secretary of the 

Department of Education to discharge 

certain specific loans in the event that a 

student was unable to complete an educational 

program due to a school’s closure. 4 

Without delving into the depths of the alphabet 

soup that is the current federal student 

loan regimen, students are eligible to 

receive a closed school discharge of their 

Federal Family Education Loans (FFEL); 

Federal Direct Loans; and Federal Perkins 

Loans. 5 Additionally, Federal Parent 

Plus loans may also be discharged due to 

school closure if the student on whose behalf 

the loan was taken qualifies. 6 

For purposes of a closed school discharge, 

“school” means the school’s main 

campus or any branch of the main campus. 

7 Distance and online programs are 

considered part of the main campus of 

the school, so a student enrolled in an 

online or distance program is only eligible 

for a discharge if the main campus 

closes, and not simply when the online 

or distance program is discontinued. 8 

The official “closure date” is defined as 

the specific date when the school ceased 

to provide education in all programs, 

as determined by the Secretary. 9 This 

means that a student is not eligible for 

a discharge when the school terminates 

a specific program before a student can 

complete it, but only when the school 

has stopped all programs. On the other 

hand, a student may receive a discharge 

even if they are issued a diploma or certificate 

by a closed school, provided they 

did not actually complete the program. 10 

Students are also eligible for a closed 

school discharge if they withdrew from a 

school not more than 120 days before the 

school’s closure date. 11 

“Teach-out” option: 

Impact on federal loans 

Students may be prevented from discharging 

their loans if they transfer any 

credits to a different institution under a 

“teach-out” agreement. 12 “Teach-out” is 

defined as a written agreement that provides 

for the equitable treatment of students 

and a reasonable opportunity for 

students to complete their program 

of study if an institution, or an institutional 

location that provides 100 

percent of at least one program offered, 

ceases to operate before all enrolled 

students have completed their 

program of study. 13 Students will not 

be prevented from discharging their 

loans if they do not complete the program, 

so commencing a “teach-out,” 

but failing to complete it, should still 

allow a student to discharge debt from 

the closed school. Additionally, it is important 

to note that in question 13 on 

the application for discharge, the Department 

asks if a student completed or is in 

the process of completing “the same or 

comparable program of study at another 

school.” This requirement that the program 

be the same or comparable does not 

appear in the regulations. 

Applying for a discharge 

For students who wish to explore 

their specific discharge options, it is advisable 

to know which loans they have. 

The best place to start for federal loans 

is the National Student Loan Data System 

(NSLDS). The NSLDS is the 

central database for federal student 

aid from the Department of 

Education. The database can 

be accessed online at www. 

nslds.ed.gov. Through the 

NSLDS database, borrowers 

can view and 

download data on 

loan and grant amounts, 

outstanding balances, loan 

status and disbursements. 14 

To access their NSLDS students 

will need their FSA 

ID, which replaced the previous 

PIN system in May 

2015. 15 It is important to 

note that the Department 

of Education has expressly 

stated that the FSA ID 

should only be created and 

used by the owner of the FSA ID, and 

that it was prohibited for third parties to 

use another’s FSA ID even with express 

permission. 16 

Many students should also be actively 

informed by the Department of Education 

or the holder of the loan that they 

have a right to a discharge, because the 

Department of Education and holder are 

required to identify eligible students (and 

parent cosigners) after the Department 

has determined that a school has closed 

By Chris Wysokinski 

and send them a notice, along with an application, 

and cease collection efforts for 

60 days after the mailing. 17 Students who 

fail to submit their application, or never 

receive one due to error or because they 

could not be located, can obtain a copy 

from the Department’s website at https:// 

ifap.ed.gov/. The application should be 

submitted to the loan servicer or directly 

to the Department, depending on who 

holds and actually services the loan. 

What happens when the 

loans are discharged? 

Once a student receives a discharge, 

they are no longer obliged to repay the 

loan or any costs or charges associated 

with it. 18 Additionally, the student should 

be reimbursed for all amounts paid to 

date on the loan, whether voluntary or 

involuntary, such as garnishments or 

tax intercepts. 19 The student should no 

longer be regarded as in default on the 

loan, and is immediately eligible for 

new federal loans and grants. 20 

24 Bench&Bar of Minnesota s December 2016 www.mnbar.org www.mnbar.org December 2016 s Bench&Bar of Minnesota 25

The discharge must also be reported to 

any credit reporting agencies that had 

previously received reports of the loan, 

so as to delete all adverse credit history 

assigned to the loan. 21 Due to how expansive 

these remedies are, students who 

delayed submitting an application, or 

could not be located by the holder of the 

loan at the time of school closing, should 

not have long lasting harm as a result of 

the delay. 

Limited options for private 

loans; FTC holder rule 

For those students who are saddled 

with private student loans, statutory discharge 

is not an option, and students do 

not have any statutory options based on 

school closure. However, all hope is not 

lost. Private borrowers may still turn to 

The FTC’s rule, Preservation of Consumers’ 

Claims and Defenses, commonly 

known as the “FTC holder rule” which 

would allow the student to pursue the 

same claims against the holder of the 

loan that the student might have had 

against school. 22 These claims could then 

include claims based on the school’s early 

and untimely closure. The FTC holder 

rule has broad applicability to sellers of 

goods or services to consumers; therefore 

it can cover for-profit schools. 23 In fact, 

the FTC’s Statement of Basis and Purpose 

for the holder rule explicitly states 

that the rule applies to vocational training. 

24 There are many potential complications 

that can arise with these claims, 

chief among them being, the schools failure 

to include the notice; however anyone 

wishing to consider representation of 

a client who has private loans should explore 

this potentially powerful option. s 

CHRIS WYSOKINSKI is an 

attorney in the Consumer 

Rights Practice Group 

at Nichols Kaster, PLLP 

where he represents 

consumers in class 

actions across the 

country. During law 

school, Chris was student 

director of the Consumer Protection Clinic at the 

University of Minnesota Law School. 

CWYSOKINSKI@NKA.COM 

Notes 

1 

Anya Kamenetz, All Things Considered: 

Large, For-Profit ITT Tech Is 

Shutting Down All Of Its Campuses, 

NPR (Sept. 6, 2016, 1:36 PM ET), 

http://www.npr.org/sections/thetwoway/2016/09/06/492819673/largefor-profit-itt-technical-institutes-willclose-its-doors. 

2 

Mark Brunswick, Globe U and 

Minn. School of Business Must 

Close, State Says After Fraud Ruling, 

StarTribune (9/9/2016), http:// 

www.startribune.com/judge-globe-uand-minnesota-school-of-businesscommitted-fraud-in-criminal-justiceprograms/392801791/ 

; 

see also Commissioner Pogemiller 

Statement on Globe University and 

Minnesota School of Business, Minn. 

Off. of Higher Educ. (9/12/2016), 

https://www.ohe.state.mn.us/mPg. 

cfm?pageID=2211. 

3 

The Department issued new final 

regulations on 10/28/2016 that address 

a wide range of issues related 

to school misconduct and school 

closure. Most of the regulations are 

set to go into effect on July 1, 2017 

and would allow the Secretary to 

grant an automatic closed school 

discharge to a student who has not 

begun a new program within the 

three year period. Students wishing 

to receive quicker relief could still 

apply using the outlined methods 

in the article. The regulations are 

available at https://www.gpo.gov/ 

fdsys/pkg/FR-2016-11-01/pdf/2016- 

25448.pdf. 

4 

20 U.S.C. §1087(c)(1). 

5 

34 C.F.R. §§682.402(d) (FFEL), 

685.214 (Direct Loan), 674.33(g) 

(Perkins Loan). 

6 

34 C.F.R. §§682.402(d)(1)(i) 

(FFEL), 685.214(a)(1) (Direct 

Loan). 

7 

34 C.F.R. §§682.402(d)(1)(ii)(c) 

(FFEL), 685.214(a)(2)(ii) (Direct 

Loan), 674.33(g)(1)(ii)(B) (Perkins 

Loan). 

8 

78 Fed. Reg. 45,618, 45,627–628 

(July 29, 2013). 

9 

34 C.F.R. §§682.402(d)(1)(ii) 

(A) (FFEL), 685.214(a)(2)(i) 

(Direct Loan), 674.33(g)(1)(ii) 

(A) (Perkins Loan). The list of all 

closed schools with official “closure 

dates” is updated monthly and can 

be accessed at https://www2.ed.gov/ 

offices/OSFAP/PEPS/closedschools. 

html. 

10 

See U.S. Dep’t of Educ., Dear 

Colleague Letter 94-L-166/94- 

G-256 (Sept. 1994). 

11 

34 C.F.R. §§682.402(d)(1)(i) 

(FFEL), 685.214(c)(1)(i)(B) 

(Direct Loan), 674.33(g)(4)(i)(B) 

(Perkins Loan). 

12 

34 C.F.R. §§682.402(d)(3)(ii)(c) 

(FFEL), 685.214(c) (Direct Loan), 

674.33(g)(4)(i)(C) (Perkins Loan). 

13 

34 C.F.R. §602.3; for there to 

be a valid teach-out agreement, 

the institutions may be required 

to submit a “teach-out” plan to 

accrediting agencies. 

14 

Pamela Eliadis, Electronic Announcement: 

Implementation of 

MyStudentData Download Button 

on NSLDS, U.S. Dep’t of Educ. 

(9/24/2012), https://www.ifap. 

ed.gov/eannouncements/092412Im 

plementofMyStudentDataDownloa 

dButtononNSLDS.html. 

15 

Brenda Wensil & Pamela Eliadis, 

Electronic Announcement: FSA ID/ 

PIN Replacement—FSA ID Must 

Only Be Created by FSA ID Owner, 

U.S. Dep’t of Educ. (7/17/2015), 

https://ifap.ed.gov/eannouncements/0 

71715FSAIDnPINReplacementCrea 

tedByFSAIDOwner.html. 

16 

Id. 

17 

34 C.F.R. §§682.402(d)(8) 

(FFEL), 685.214(f) (Direct Loan), 

674.33(g)(8) (Perkins Loan). 

18 

34 C.F.R. §§682.402(d)(2)(i) 

(FFEL), 685.214(b)(1) (Direct 

Loan), 674.33(g)(2)(i) (Perkins 

Loan). 

19 

34 C.F.R. §§682.402(d)(2)(ii) 

(FFEL), 685.214(b)(2) (Direct 

Loan), 674.33(g)(2)(ii) (Perkins 

Loan). 

20 

34 C.F.R. §§682.402(d)(2)(iii) 

(FFEL), 685.214(b)(3) (Direct 

Loan), 674.33(g)(2)(iii) (Perkins 

Loan). 

21 

34 C.F.R. §§674.33(g)(2) (Perkins 

Loan), 682.402(d)(2)(iv) (FFEL), 

685.214(b)(4)(Direct Loan). 

22 

16 C.F.R. §433. 

23 

16 C.F.R. §433(1)(j). 

24 

40 Fed. Reg. 53,524 (11/18/1974). 


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WHY YOUR 

FIRM NEEDS 

AN ETHICS 

PARTNER. 

NOW. 

Recent changes in law 

make it a top priority 

Recent legal developments dictate that every law 

firm in Minnesota should designate a firm ethics 

counsel. First and foremost, the law on in-firm 

attorney-client privilege has undergone a tectonic 

shift—but there are many vital reasons to take 

this step now if you haven’t already. 

By Chuck Lundberg 

Does your law firm have a 

designated ethics partner 

(or firm counsel, or inhouse 

counsel, or general 

counsel)? You should. It’s 

now more important than ever to have 

someone fill this critical role in every firm. 

One ethics partner described the role 

this way: 

The ethics nerd. Every law office 

has, or should have, at least one. You 

know, the guy or gal that other lawyers 

frantically descend on when they need 

to sue a company they represented 

last year, or when they really want 

to contact that former CFO of an 

opposing party. Yes, I know, the 

politically correct term these days is 

“firm counsel” or “ethics counsel,” 

or, in larger firms, even “general 

counsel.” But we’re still ethics nerds. 

Recent legal developments require that 

every law firm in Minnesota designate a 

firm ethics counsel, a partner responsible 

for (among many other things) (1) 

advising the firm and its lawyers about 

conflicts of interest and other ethics 

issues that arise every day in client intake 

and ongoing practice; (2) keeping current 

with trending issues related to law firm 

ethics and liability (see sidebar), and (3) 

effectively communicating those ethics 

and risk issues to the firm’s partners and 

associates. 1 

Why designate an ethics partner? For 

several important reasons. 

To protect the firm’s privilege 

First and foremost, the law on in-firm 

attorney-client privilege has recently 

undergone a tectonic shift; the prevailing 

case law now requires a designated firm 

ethics partner in order for the law firm to 

prevail on a claim of evidentiary privilege. 

The in-firm privilege issue arises in 

this real-life context: 

Firm attorney realizes that a serious 

ethics or malpractice issue has arisen 

in one of her client’s cases. She 

consults with the firm’s ethics partner 

about the mistake or violation and 

what to do now, whether disclosure 

or other action is required, etc. When 

the malpractice lawsuit is eventually 

commenced, will those conversations 

be deemed privileged and therefore 

immune from discovery? 

For many years, the majority view 

in case law across the country had 

rejected claims of firm privilege in 

this context. About three years ago, 

however, the law was flipped on its head. 


The recent case law overwhelmingly 

supports a claim of attorney-client 

privilege by the firm—if certain hoops 

are jumped through. And the very first 

hoop requires that a lawyer within the 

firm has been designated to serve as inhouse 

or ethics counsel. 2 

Of course, protecting the firm’s 

privilege is just one aspect of firm 

counsel’s job. The much more timeconsuming 

day-to-day tasks include 

identifying and resolving potential 

conflicts and other risk situations as they 

arise; creating and monitoring systems 

for dealing with such issues (conflicts, file 

opening, and trust account systems); and 

overseeing enforcement of important 

firm policies (no business with clients, 

never sue for unpaid fees, notarization 

standards) and forms (engagement and 

declination letters, conflicts waivers), 

and monitoring the ever-present ethics 

and risk problems that arise in ongoing 

litigation (sanctions and spoliation issues, 

disqualification motions, etc.). 

To instill attitudes 

of ethical practice 

Another big responsibility for firm ethics 

counsel is to train the firm’s lawyers 

about ethical awareness and practice. 

One senior partner in a well-respected 

firm put it this way: “One of the difficult 

tasks facing law firm management is 

ensuring that the firm’s attorneys learn, 

discuss, and implement legal ethics.... A 

firm must find a way to stress repeatedly 

the importance of a law firm philosophy 

regarding ethical standards, of the need 

for relationships with other professionals, 

and of our duties as officers of the 

court.... But ethics training frequently is 

expensive and cumbersome and often is 

ineffective.” 

Here is the big picture goal: To instill, 

to inculcate, the attitude “this is how we 

practice here” as an ethical imperative in 

all firm personnel, so that it becomes a 

recognizable part of the firm culture. It’s 

easy enough to say, but it is a constant, 

repetitive process to make it work. 

The bad partner: 

Firm counsel’s worst nightmare 

Perhaps the most harrowing issue firm counsel might ever have to 

deal with is the “bad partner.” Ethics nerds talk about “cowboys” or “lone 

wolves.” The prospect that one of your own partners could go completely off 

the rails ethically is probably the worst case for a law firm. 

Remember James O’Hagan? David Moskal? Aaron Biber? Michael 

Margulies? In each case a prominent and respected Minneapolis law firm 

learned that one of its name partners, or the head of one of its practice groups, 

or a partner who was a respected leader in the bar, had been engaging in 

horrible criminal misconduct. When the news breaks, it is headline news— 

and the fact that he is a partner in your firm is part of the headline. 

As a practical matter, you normally have a limited amount of time to get 

out in front of this kind of disaster. These situations often 

start with a suspect event or document in the law 

firm, allowing firm counsel to conduct and paper an 

internal investigation. It all goes quickly once the 

suspicion turns out to be credible, because suddenly 

there are implicit deadlines for mandatory reporting: 

notifying malpractice carriers, disclosure to 

affected clients, reporting to the Lawyers 

Board (probably in that order). 

All of this happens before it goes public, 

by which point you will have drafted 

the firm’s statement for the press, 

explaining your shock, sadness, and 

sense of betrayal, noting that any 

loss by clients has of course been 

made whole by the firm, etc. (Oh, 

and remember to pull down the 

attorney’s webpage—you know, 

where the firm extolls his/her 

wonder and virtue. The TV news 

folks love to show glowing web 

pages about disgraced lawyers.) 

Perhaps the most important training 

lesson: Firm attorneys should consult 

with the designated firm ethics counsel 

as soon as the problem arises. These 

things usually don’t get better with age. 

Second most important lesson: Such 

ethics consults are always conducted in 

person or by phone – never by email. (You 

all know what the “e” in email stands for, 

right? “Exhibit.”) 

Because the rules require 

ensuring ethical practice 

Minn. Rule of Prof. Cond. 5.1(a) imposes 

an affirmative ethical duty on all 

law firm partners to “make reasonable efforts 

to ensure that the firm has in effect 

measures giving reasonable assurance 

that all lawyers in the firm conform to the 

Rules of Professional Conduct.” (Rule 5.3 

extends the same ethical supervisory and 

training duties to nonlawyer employees 

of the firm.) One partner must oversee 

this responsibility—that’s firm counsel. 

Because it forestalls missteps 

If your firm’s attorneys are going to 

practice anywhere “close to the line,” it 

wouldn’t be a bad idea for them to have 

some sense of where the ethical line actually 

is—because it moves and changes 

over time. And as one ethics commentator 

put it, “When you come very close to 

the line, it’s easy to commit a foot fault, 

and in our business, those foot faults create 

grave consequences.” 

Because it establishes 

a training record 

It may occasionally prove critically 

important to be able to document the 

firm’s ethics training record. In defending 

against legal malpractice claims and 

ethics complaints, for example, it can be 

worth its weight in gold if the firm can 

demonstrate a record of effectively training 

its lawyers about their pertinent ethical 

duties. 

Because reputation is invaluable 

The very best trial lawyers and litigators 

will tell you (off the record, 

of course) that reputational 

value—the ability to walk into 

a courtroom and immediately 

be accorded some modicum of 

presumptive credibility, of trust, by 

the judge—can be instrumental 

to effective advocacy. When a 

young associate who the judge 

has never heard of mentions 

her firm name while noting 

her appearance for the record, 

that judge may well impute 

to her the reputation for 

ethical practice long held by that 

distinguished firm. s 


Trending issues in law firm ethics and liability 

Law firm counsel must continually be aware of new issues and problems in the 

practice. Here is a snapshot of the hottest legal ethics and risk issues as of fall 2016, 

gleaned from some very recent and reputable sources. 3 

n Cyber-liability/data breach: The received wisdom is crystal 

clear: All law firms should now be thinking in terms of when they 

will have to deal with a data breach emergency, not if they will. 

The April 2016 Panama Papers disaster is a great horror story to 

keep firm management up at night—2.6 terabytes of extremely 

confidential law firm client information, all posted on the internet. 

The size and scope of the Panama Papers leak is mindboggling: 

more than 320,000 text documents, 1.1 million images, 

2.15 million PDF files, 3 million database excerpts and 4.8 million 

emails. It’s been called “an unprecedented event—the largest 

leak in history.” 4 

Imagine the potential claims and the PR nightmares (in a 

worst-case scenario, it will hit the press—ask the folks at Target 

about that), not to mention the legally required public disclosures 

and colossal expense attendant to remedying such a 

disaster. 

Wholly aside from the disastrous embarrassment and the 

ghastly PR problems this would create for any law firm, there is 

an increasingly serious ethics issue lurking here. Last year Rule 

1.6 was amended by adding a new section (c) requiring that “A 

lawyer shall make reasonable efforts to prevent the inadvertent 

or unauthorized disclosure of, or unauthorized access to, information 

relating to the representation of a client.” The Comments 

to the new Rule suggest that the ethical standard may well 

require much more than some law firms are currently doing. 

Watch for it: Someday, some local lawyer will bereprimanded 

because of a computer hack or data breach at his or her firm. 

Some big firms are already adding new management-level 

personnel to deal with these issues: for example, a CIO (chief 

information officer) charged with monitoring and protecting firm 

data. An emergency plan is highly recommended for all firms. 

And whether firm insurance even covers such claims and expense 

is another huge issue. 5 

n Client-imposed retainer provisions: This one is primarily a 

big-firm problem, at least for now. It comes up like this: Large 

corporate client, with a lot of excellent billable work, wants to 

retain you, but there’s a catch: The client wants your retainer 

agreement to incorporate some special new provisions, such as 

sweeping definitions of client identity to include numerous corporate 

affiliates uninvolved in the matter; redefining conflicts of 

interest more broadly than the ethics rules, including positional 

conflicts of interest; and provisions claiming client ownership 

and copyright protection for the firm’s work product, indemnification 

provisions, authority to conduct internal audits, and 

security requirements. Most recently, some clients have even 

sought to require advance waivers of any law firm privilege. 

n Lawyer mobility: As memorably said in Blazing Saddles, 

“They’re always coming and going, and going and coming.” 

And every lateral move can create potential ethics or liability 

problems, either for the departed firm or for the new firm or 

both. Nowadays, it’s hard to find a national ethics program that 

does not have a program addressing the details of this thorny 

topic. “Disqualification motions arising out of lateral moves” is 

unquestionably an increasingly predominant theme in the DQ 

reportage and developments. 6 

n Joint representation conflicts: When a lawyer represents 

multiple clients in a single matter, it can raise some serious 

and difficult problems of conflict of interest, confidentiality, and 

other professional responsibility issues. When is consent ever 

sufficiently “informed” in this context? And what happens when 

things fall apart down the road—do you necessarily have to 

withdraw from representing both clients? The Comments to Rule 

1.7 go on at length about the especially problematic aspects of 

“common representation.” Some experts are now counseling 

firms that, simply as a matter of risk management, certain joint 

representations should not be entertained at all (even where the 

rules would allow it). Conflicts are now the single leading cause 

of legal malpractice claims, per some recent insurer surveys, 

and claims arising out of joint representations are often the 

most dangerous and hardest to defend. 

n #SocialMediaEthics: Another frequent subject at national 

ethics programs lately; a list of recently trending topics vividly illustrates 

the newest risks attendant to law practice—risks that 

didn’t even exist five or 10 years ago: social media communications 

with represented parties or unrepresented third parties, 

unauthorized practice by social media, “friending” judges, inadvertently 

created attorney-client relationships, disclosure of 

confidential information via social media, mining social media 

for information about parties and witnesses, and use of social 

media at trial. 


What about solos 

and small firms? 

Much of the advice in this article is directed 

to firms of some size—say, 10 to 45 

attorneys—firms that may not yet have a 

well-developed ethics counsel function. But 

sole practitioners and very small firms can 

and should adapt these suggestions as well: 

There is no solo/small firm exception to Rule 

5.1’s affirmative duty to make reasonable efforts 

to ensure that all lawyers in a firm conform 

to ethical standards. Here are some 

ideas directed at the smallest law firms. 

n Designate someone: If you’re a solo, I 

guess you’re it; you are the firm’s ethics 

partner by default. If there are two or more 

lawyers in your firm, one of you must be designated 

as the responsible ethics partner. 

n Keep current: Make it a point to follow 

new ethical developments. The OLPR writes 

a professional responsibility column in this 

magazine every single month. Read it religiously. 

And there are many other free resources 

to track new developments in legal 

ethics. For example, go to the ABA Journal 

website (www.abajournal.com) and enter 

legal ethics or malpractice in the search bar. 

Even better, download Wernz, Minnesota 

Legal Ethics, an extraordinary 1400-page 

online treatise—free to all Minnesota attorneys 

at www.mnbar.org/ethics—covering 

all aspects of this topic, with monthly updates 

and commentary. Any ethics partner 

should have Freivogel on Conflicts bookmarked, 

both for its astonishing immediacy 

(it’s updated weekly) and its breadth of coverage. 

And Minnesota CLE’s annual Legal 

Ethics Summit in June is a must-attend for 

ethics nerds. 

n Consult an ethics lawyer: Identify an ethics 

expert who you can consult if necessary 

when an issue arises. I regularly take calls 

from lawyers who just want to buy an hour 

of my time to help them think through a particularly 

thorny ethics or malpractice issue. 

Noted ethics maven Eric Cooperstein (ethicsmaven.com/practice/) 

does this all the time. 

And there are many other knowledgeable 

attorneys who would be willing to consult 

with you. No matter where in the state you 

practice, there is someone in your county 

or judicial district who has served on the 

local District Ethics Committee or the Lawyers 

Board, who knows the lay of the land, 

how the rules are applied, etc. Particularly 

where there is a lot riding on the issue, a formal 

opinion letter from an ethics expert supporting 

the proposed conduct can be worth 

its weight in gold if a lawyer’s decision on an 

arguable issue is subsequently questioned. 

Notes 

1 

The big firms have this well-covered. The 20 or 25 largest firms in 

Minnesota all have experienced general counsel who spend all or most 

of their time representing and advising the law firm. This group meets 

regularly to discuss breaking or troublesome ethics or risk issues, as 

part of firm counsel discussion roundtables organized in cities across 

the country by the ABA Firm Counsel Project (now the Firm Counsel 

Connection Subcommittee of the Business Law Section). 

2 

The recent revolution in the law of in-firm attorney-client privilege 

nationally has been discussed at length on the Minnesota Legal Ethics 

blog. See Lundberg and Desteian, New Developments in the Law 

Governing Privilege for Communications with Firm Counsel (2013). http:// 

my.mnbar.org/blogs/william-wernz/2013/11/01/november-2013-developments-in-intra-firm-privilege 

In addition, Minnesota state and federal trial courts have now 

recognized the in-firm privilege. See Lundberg and Desteian, Update 

on the In-Firm Privilege (2014) http://my.mnbar.org/blogs/william-wernz/2014/12/04/update-on-the-in-firm-privilege 

This summer, an important New York appellate decision endorsed the 

new privilege analysis. Stock v. Schnader Harrison Segal & Lewis LLP, 

35 N.Y.S.3d 31 (1st Dept. 2016) http://www.bna.com/ny-court-endorsesn73014444651/ 

3 

This list was compiled from a review of topics addressed (and to be 

addressed) at several recent (and future) national conferences on legal 

ethics and malpractice (where firm counsel from across the country 

gather to learn about the newest law firm exposure areas); from recent 

postings on national ethics listservs and blogs; from the advance 

sheets of specialized reporters and press that track current developments 

in the law of lawyering; and from a very recent national survey 

of law firm counsel, the Aon 2016 General Counsel Survey. 

4 

http://www.livescience.com/54348-how-big-is-panama-papers-leak.html 

5 

Law firms would be well advised to consider whether they are adequately 

insured against the substantial damage exposure and cost of 

a data breach. Likely, many such claims are expressly excluded from 

coverage by most legal malpractice and CGL policies. 

Responding to this problem, the ABA Standing Committee on Lawyers 

Professional Liability recently published a very handy guide to 

insuring against this exposure, “Protecting Against Cyber Threats: A 

Lawyer’s Guide to Choosing a Cyber-Liability Insurance Policy” This 

32-page paperback book, retailing for $19.95, has been described as 

“extremely useful for law firms that are looking to purchase a cyber 

liability policy” and “a must read for any law firm that recognizes that 

it’s not a matter of ‘if’ but ‘when’ a data breach happens; (and) how a 

cyber policy can protect the firm and effectively manage the breach.” 

See “ABA offers lawyers guide to evaluate, obtain cyber-liability insurance 

coverage” at http://www.americanbar.org/news/abanews/aba-newsarchives/2016/05/aba_offers_lawyersg.html. 

6 

For a summary of the many potential issues arising out of lawyer mobility, 

see Lundberg and Desteian, “How to Leave Your Law Firm and 

Live to Tell the Tale,” Bench & Bar of Minnesota (Sept. 2015). 

An earlier version of this article was published as two columns for Minnesota Lawyer: 

“Inculcating legal ethics in the law firm,” 7/25/2016 and “The hottest law firm exposure 

issues,” 9/26/2016 (both sub. req.). 

CHUCK LUNDBERG is recognized nationally as a leader in the areas 

of legal ethics and malpractice. A former chair of the Minnesota 

Lawyers Board, he retired last year after 35 years of practice 

with Bassford Remele. He now consults with and advises attorneys 

and law firms on the law of lawyering through Lundberg Legal 

Ethics (www.lundberglegalethics.com). 

CHUCK@LUNDBERGLEGALETHICS.COM 


OFF TO A GREAT START 

Welcome to the bar, new lawyers 

The MSBA has you covered 

Get Involved 

Meet your colleagues. Take a leadership 

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Notes&Trends 

Landmarks in the Law 

Current developments in judicial law, legislation, and administrative action together with a foretaste 

of emergent trends in law and the legal profession for the complete Minnesota lawyer. 

Commercial and 

Consumer Law 

by Fred Miller 

34 

Environmental Law 

by Vanessa Johnson 

35 

Family Law 

by Jaime Driggs 

36 

Federal Practice 

by Josh Jacobson 

37 

Intellectual Property 

by Tony Zeuli 

& Joe Dubis 

38 

Real Property 

by Michael Kreun 

39 

Tax 

by Morgan Holcomb 

& Jessica Dahlberg 

40 

Torts & Insurance 

by Jeff Mulder 

42 

COMMERCIAL AND 

CONSUMER LAW 

JUDICIAL LAW 

n History repeats itself. Ever since 

the Uniform Commercial Code wrote 

a statute of frauds into the code, there 

has been debate over whether it creates 

more fraud than it prevents, and 

whether it is a relic of past procedure 

that enlightened law should discard as 

many of the legal systems in the world 

have done. See, e.g., United Nations 

Convention on Contracts for the 

International Sale of Goods Article 11. 

American law has not agreed with discarding 

the concept of the statute, as it 

avoids disputes over whether there was 

an agreement, and indeed the protection 

of the statute’s concept was expanded 

when a spate of “lender liability” cases 

arose a while ago. As a result, much of 

the history under the UCC of trying to 

avoid the statute is being repeated. 

Exhibit One is Figgens v. Wilcox, ___ 

N.W.2d ___, No. A14-1358 (Minn. 

2016). Figgens owned a business and 

received a loan from Grand Rapids State 

Bank. That loan matured in late 2009 

and a balloon payment was due. Figgens 

entered into negotiations to refinance 

instead, and allegedly the bank’s CEO 

advised Figgens that he need not pay 

while negotiations were ongoing. Figgens 

also sought financing at Woodland 

Bank, and Woodland contacted Grand 

Rapids and was informed Figgens had 

a poor payment record and was delinquent. 

This allegedly was false. As a 

result Woodland backed off and Figgens 

alleged that allowed Grand Rapids 

to charge a higher rate, so he sued for 

intentional misrepresentation. Grand 

Rapids moved to dismiss the suit on 

the basis of Minn. Stat. §513.33 (2014) 

enacted in 1985 in response to the thenfarm 

crisis. 

Minn. Stat. §513.33 provides in 

part that a debtor may not maintain an 

action on a credit agreement unless the 

agreement is in writing… and is signed 

by the creditor and the debtor. Figgens 

in defense asserted the statute did not 

apply because: 

(1) there was no enforceable agreement 

as no consideration; and 

(2) promissory estoppel. 

The court thought the use of “agreement” 

as opposed to “contract” showed 

an intent to address a broader set of 

interactions than those just qualifying 

as enforceable contracts citing legal 

dictionaries. It then had no trouble 

finding a “credit agreement” existed by 

the actions of the parties. While the 

court did not say so, this seems sound in 

comparison to the UCC as UCC §2-201 

uses “contract” and the Code makes the 

same differentiation between “agreement” 

(UCC §1-201(b)(3)) and “contract” 

(UCC §1-201(b)(12)). Whether it 

is wise policy is perhaps another matter. 

The court also refused to create a 

judicial exception for promissory estoppel 

given that the statute was plain, 

clear, and unambiguous. In reference to 

the UCC, that has not stopped court use 

of estoppel. See, e.g., Hitzke v. Easterday, 

285 Wis. 2d 807, 701 N.W.2d 654 (Wis. 

Ct. App. 2005); but see, Siesta Sol, LLC 

v. Brooks Pharmacy, Inc., 617 F. Supp.2d 

38 (D.R.I. 2007). The unsuccessful 

amendments to UCC Article 2 in the 

amended Official Comment to amended 

§2201 encouraged the estoppel exception, 

which may well be one reason for 

the lack of success of that effort, and 

evidences the continued adherence 

to the concept of a statute of frauds in 

American law. Whether it is consistent 

with the more relaxed approach of the 

Minnesota statute is a question worth 

consideration. 

FRED MILLER 

Retired G.L. Cross Research Professor, 

University of Oklahoma 

fmiller@lindquist.com 


Notes&Trends 

ENVIRONMENTAL LAW 

LOOKING AHEAD 

n New survey indicates an increase in 

company disclosure of environmental 

data. The pressure on companies to 

release environmental, social and governance 

(ESG) data has increased dramatically 

in recent years, according to a 

new survey by Pricewaterhouse Coopers 

LLP (PWC). See “Investors, Corporates 

and ESG: Bridging the Gap,” October 

2016. The study found that 81 percent 

of S&P 500 companies published 

sustainability reports in 2015, which was 

up from 20 percent in 2011. Company 

stakeholders increasingly are looking to 

this data in addition to financial metrics 

when making decisions. 

Investors in particular want to evaluate 

a company’s exposure to risk posed 

by such variables as climate impact, 

stewardship of natural resources, quality 

and safety of company products, and 

worker safety. Thirty-one percent of 

investors surveyed said that ESG data 

is very important for equity investment 

decisions, and 61 percent of corporates 

say that this data is very important to 

the core business strategy. 

Although it is an accepted premise 

that investors want and expect to see 

ESG data, PWC concluded that investors 

do not know how to utilize this information 

when making investment decisions. 

This disconnect is due in part to the 

problem of not being able to compare 

data, as more than nine out of ten investors 

said that it is not easy to compare 

one company’s data to another’s. The 

survey found that 80 percent of corporates 

follow Global Reporting Initiative 

(GRI) standards, while 43 percent of 

investors prefer Sustainability Accounting 

Standards Board (SASB) standards. 

These problems may change in the 

near future as the SASB plans to finalize 

industry specific standards in 2017. In 

addition, the Securities and Exchange 

Commission (SEC) recently sought 

public comment about environmental 

compliance and sustainability disclosures. 

Specifically, the SEC asked about 

increasing or decreasing the environmental 

disclosure required and what 

format should be used. 

n Environmental groups sue MPCA 

over alleged mining pollution. Three 

environmental groups have acted to 

address alleged pollution from the state 

of Minnesota’s taconite mining industry. 

The groups brought a lawsuit focusing 

on one taconite mine and 10-mile long 

tailings waste pit owned by U.S. Steel 

Corporation in Mountain Iron, Min- 

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nesota. The waste pit at issue continues 

to operate despite the expiration of its 

permit 24 years ago. 

The Minnesota Pollution Control 

Agency (MPCA), which issues these permits, 

has authorized the mine to continue 

operations while the MPCA has worked 

on a new permit for years. It plans to 

withhold the new permit until after it has 

revised the standard regulating the pollutant 

sulfate, which forms when waste 

rock is exposed to air and water. The new 

standard isn’t expected until 2018, and 

the environmental groups say that this is 

not soon enough. The lawsuit seeks to require 

the permit by a certain date in the 

near future and that it require compliance 

with state discharge standards that 

the mine allegedly violates currently. 

The U.S. Steel site is not the only one 

being targeted by environmental groups. 

At least 15 mines are operating with 

expired permits in Minnesota. This has 

led to attention from the U.S. Environmental 

Protection Agency (EPA), which 

has pressured the MPCA to release new 

mining permits for these mining operations. 

EPA started an investigation last 

year into the state’s regulation of mining 

that is expected to take years. Minnesota 

Center for Environmental Advocacy 

v. Minnesota Pollution Control Agency, 

Case No. 62-CV-16-6257. 

n Minnesota regulates pesticide usage 

to protect bees. Gov. Mark Dayton 

recently issued an executive order 

designed as the toughest standard in 

the United States to combat the serious 

decline in honey bee population identified 

in recent years. The new standard 

requires that farmers prove “an imminent 

threat of crop loss” before being 

allowed to spray agricultural pesticides 

called neonicotinoids. These pesticides 

are used as seed coatings on most corn 

and soybean seeds, and were identified 

four years ago as one of the causes of 

the honey bee decline. The honey bee 

decline could have a detrimental impact 

on the state’s $90 billion agricultural 

industry, which relies on the bees as pollinators 

for crops. 

This strict regulation gets out in front 

of the EPA, which is also looking at regulating 

neonicotinoids. Further use restriction 

in Minnesota is possible as well, with 

the Department of Agriculture (MDA) 

proposing a new program to regulate the 

treatment of seeds with these pesticides. 

This MDA program will require approval 

from the state Legislature. 

VANESSA JOHNSON 

Parkway Law LLC 

vanessajohnson@q.com 

Notes&Trends 

FAMILY LAW 

JUDICIAL LAW 

n Decision in Curtis v. Curtis. The longanticipated 

decision from the Supreme 

Court in Curtis v. Curtis is finally here. 

The issue in the case was whether, and 

under what circumstances, a district 

court may ground its spousal maintenance 

decision on an expectation that 

the claimant reallocate her property 

award to maximize income. 

The parties were married in 1990 

and had two children, one of whom was 

emancipated. Husband was a dentist and 

had earned a substantial income. Wife 

was a homemaker. The parties stipulated 

that wife would receive 57 percent of 

the marital estate and husband would 

receive 43 percent of the marital estate. 

Wife’s share totaled about $2.2 million 

and consisted of the homestead and a 

portfolio of investments. They could 

not resolve wife’s spousal maintenance 

claim and the district court, following 

trial on that issue, denied her request 

because it found that wife could meet 

her needs by reallocating her portfolio 

from growth-oriented funds to incomeoriented 

funds. This finding was based 

on testimony from husband’s financial 

expert that wife’s portfolio could be 

generating about 7 percent instead 

of the 1.7 percent return it had been 

generating in growth-oriented funds. 

Wife argued that any reallocation of the 

portfolio amounted to an impermissible 

invasion of her assets. The district court 

rejected this argument and the majority 

of the court of appeals agreed because 

only the income produced by the 

portfolio would be used to meet wife’s 

needs and the principal would not be 

depleted at all. 

Judge Kirk disagreed with the 

majority for a variety of reasons, but was 

critical of the reallocation conclusion 

because he saw that as amounting to 

a requirement that wife deplete the 

principal of her property award. First, 

he pointed out that reallocating the 

portfolio would trigger tax consequences 

for wife to the tune of about $150,000. 

The majority was aware of this but 

held that ignoring the taxes was within 

the district court’s discretion, citing 

Maurer v. Maurer, 623 N.W.2d 604, 608 

(Minn. 2001), for the proposition that 

consideration of tax consequences is 

discretionary. Judge Kirk also argued 

that reallocating investments forced wife 

to deplete the principal of the property 

award because the 7 percent rate of 

return figure accepted by the district 

court included capital gains. Finally, 

Judge Kirk argued that “[c]onversion 

of one type of investment account into 

another also changes the nature of the 

asset, which is analogous to invading the 

principal or liquidating the investment.” 

He pointed out that at least one 

unpublished opinion drew the same 

analogy: “Just as a court cannot order a 

spouse to invade her assets to meet her 

needs… neither can it require [a spouse] 

to change the nature of these assets in 

order to produce income to meet her 

needs.” Schneider v. Nicholls, No. C5-91- 

832, 1991 WL 245229 (Minn. Ct. App. 

11/26/1991). 

The Supreme Court began by 

tracing its earlier decisions holding 

that district courts must consider the 

income generated from a property award 

when adjudicating claims for spousal 

maintenance. Wife argued that her 

portfolio of investments differed from 

those cases since they involved cash 

and not already-invested assets. She 

urged the Court to adopt a bright-line 

rule prohibiting a district court from 

expecting a spouse to reallocate assets 

within a property award that had already 

been invested. The Court reasoned 

that expecting a property award be 

invested to produce income was not an 

invasion of the principal of the award 

since it did not reduce the value of the 

underlying assets. And the bright-line 

rule proposed by wife was inconsistent 

with the discretion courts have to 

consider the interplay between property 

awards and spousal maintenance. The 

Court then outlined several factors to 

consider in exercising that discretion: 

(1) the liquidity of the assets; (2) the 

spouse’s age and how the asset had been 

invested during the marriage; and (3) 

the tax consequences stemming from 

the reallocation. 

Applying these factors, the 

Court upheld the district court’s 

determination that wife could reallocate 

the investments within her portfolio 

to produce income, but it reversed 

the district court’s decision to not 

account for the taxes attributable to 

the reallocation. Failing to account 

for the taxes was error because it was 

undisputed that wife would incur the 

taxes as part of the reallocation that 

the district court’s decision effectively 

required her to undertake. Moreover, 

wife’s only source of funds to pay the 

taxes was her property award and so 

the district court’s decision had the 

effect of altering the parties’ stipulated 

property division. The Court remanded 

the case so that the district court could 

reconsider its decision to not award 

spousal maintenance, including the 

expectation that wife reallocate her 


Notes&Trends 

investments, with instructions that wife 

not be required to spend her property 

award to pay the income taxes resulting 

from the reallocation. Curtis v. Curtis, 

___ N.W.2d ___ (Minn. 2016). 

JAIME DRIGGS 

Henson & Efron PA 

jdriggs@hensonefron.com 

FEDERAL PRACTICE 

JUDICIAL LAW 

n CAFA jurisdiction; amount in 

controversy; timing of removal. The 

8th Circuit held that the defendant’s 

CAFA-based removal was timely when 

it was filed within 30 days of its receipt 

of plaintiffs’ expert report, which 

constituted the “other paper” which 

quantified the plaintiffs’ damages as an 

amount greater than $5,000,000, finding 

that the 30-day removal period under 

CAFA does not begin to run until a 

defendant receives a document “from 

which the defendant can unambiguously 

ascertain that the CAFA jurisdictional 

requirements have been satisfied,” and 

rejecting the plaintiffs’ argument that 

an earlier demand letter which sought 

$6,500,000 was sufficient to trigger the 

removal clock and that the removal was 

untimely. 

A dissent by Judge Murphy 

asserted that plaintiffs’ demand letter 

“ambiguously” sought damages in excess 

of CAFA’s jurisdictional threshold, 

meaning that the removal was untimely. 

Gibson v. Clean Harbors Environmental 

Servs., Inc., ___ F.3d ___ (8th Cir. 

2016). 

Take a moment. 

Help the profession. 

It’s easy. 

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Demographic 

information is vital to 

helping the Bar assess 

the composition of its 

membership and the 

needs of its members. 

Please take a minute 

to update your MSBA 

profile to include 

your demographic 

information! 

Report your confidential demographic information at: 

mnbar.org/demographic-data 

The MSBA will not share or display your personal demographic information. It will be used only to develop aggregated, membership-wide data reports. 

n Recent standing-related decisions. 

The impact of the Supreme Court’s 

Spokeo, Inc. v. Robins (136 S. Ct. 1540 

(2016)) decision continues to be felt in 

the District of Minnesota. 

In an FDCPA case, Judge Frank 

rejected the defendant’s challenge to 

the plaintiff’s standing premised on 

Spokeo, Inc., finding that the plaintiff 

had alleged “real harms, and not merely 

procedural violations.” Hill v. Accounts 

Receivable Servs., LLC, 2016 WL 

6462119 (D. Minn. 10/31/2016). 

After converting the defendant’s Fed. 

R. Civ. P. 12(b)(6) motion to a Rule 

12(b)(1) motion, Judge Nelson relied on 

Spokeo, Inc. in dismissing the plaintiffs’ 

FCRA claim, finding that the plaintiffs 

had failed to allege an injury sufficient 

to confer Article III standing. Shoots 

v. iQor Holdings US Inc., 2016 WL 

6090723 (D. Minn. 10/18/2016). 


n Jurisdictional discovery; multiple 

cases. Judge Frank ordered the parties 

to engage in limited jurisdictional discovery 

before ruling on the defendant’s 

motion to dismiss for lack of personal 

jurisdiction. Doe 318 v. The Conventual 

Franciscans a/k/a Conventual Franciscan 

Friars, 2016 WL 6434084 (D. Minn. 

10/28/2016). 

In contrast, Judge Doty rejected any 

need for additional jurisdictional discovery 

before ruling on one defendant’s 

motion to dismiss for lack of personal 

jurisdiction, where the plaintiff had 

“ample time” for jurisdictional discovery 

but had “failed to uncover facts sufficient 

to confer jurisdiction.” Western 

Nat’l Mut. Ins. Co. v. Daesung Celtic 

Energy Co., 2016 WL 6471014 (D. 

Minn. 10/31/2016). 

n Motion to stay pending resolution of 

Fed. R. Civ. P. 23(f) appeal denied. Judge 

Montgomery denied defendants’ request 

for a stay pending resolution of their 

motion for leave to file an interlocutory 

appeal from the court’s class certification 

order pursuant to Fed. R. Civ. P. 23(f), 

finding that the defendants had not 

established that it was “likely” that they 

would prevail on appeal, or that they 

would be irreparably injured if a stay was 

not granted. In Re Wholesale Grocery 

Prods. Antitrust Lit., 2016 WL 6246758 

(D. Minn. 10/25/2016). 

n Action dismissed under SLUSA; 

incorporation of allegations in 

subsequent counts. Judge Nelson 

dismissed the entirety of a putative 

class action under SLUSA, finding it 

important that the plaintiffs’ fraudrelated 

allegations were incorporated 

by reference into their non-fraud-based 

claims. 

If applied to non-SLUSA cases, this 

incorporation doctrine could have far 

broader impact in civil litigation if, for 

example, courts were to determine that 

the entirety of a complaint violated Fed. 

R. Civ. P. 11 because the allegations in a 

single frivolous count were incorporated 

by reference in the remaining counts 

of the complaint. Luis v. RBC Capital 

Markets, LLC, 2016 WL 6022909 (D. 

Minn. 10/13/2016). 

n Motions to intervene, to seal, and 

to exceed word count granted. In an 

action challenging a Minnesota school 

district’s policy permitting transgender 

students to use facilities based on their 

gender identity, Judge Wright granted a 

transgender student’s motion to intervene 

as a defendant under Fed. R. Civ. 

P. 24(b) and, while acknowledging the 

Notes&Trends 

common law right of access to judicial 

records, also granted her request to file 

unredacted documents previously filed 

in support of her motion to intervene 

under seal. Judge Wright also granted 

the plaintiffs’ letter request to exceed 

the word count limitations in the Local 

Rules. Privacy Matters v. United States 

Dep’t of Education, 2016 WL 6436658 

(D. Minn. 10/27/2016). 

n Motion to add class representative 

granted. Judge Nelson granted plaintiffs’ 

motion to amend to add a class representative 

in the NHL concussion litigation 

despite the related need to modify 

the scheduling order, finding that the 

plaintiffs’ counsel had acted diligently 

in seeking the amendment, and that the 

NHL would not be prejudiced. In Re 

National Hockey League Players’ Concussion 

Lit., 14-CV-2551 (SRN/JSM). 

n Failure to identify cases as related. 

Judge Doty criticized plaintiff’s counsel 

for filing two “nearly identical” actions 

on the same day while failing to indicate 

that the cases were related. Judge 

Doty noted that he was “troubled” by 

counsel’s “lack of candor,” and that he 

“trust[ed]” that neither the plaintiff nor 

his counsel would repeat their conduct 

in the future. Jorgensen v. Stewart, Zlimen 

& Jungers, Ltd., 2016 WL 6080200 

(D. Minn. 10/17/2016). 

JOSH JACOBSON 

Law Office of Josh Jacobson 

jacobsonlawoffice@att.net 

INTELLECTUAL 

PROPERTY 

JUDICIAL LAW 

n Copyright Act; plaintiffs’ claims 

dismissed. Chief Judge Tunheim 

recently granted defendants’ motion to 

dismiss plaintiffs’ claims of trademark 

and trade dress infringement based 

on preemption by the Copyright Act 

or failure to sufficiently plead. Bruce 

Munro, an artist known for “largescale, 

immersive, light-based works,” 

sued Lucy Activewear for light displays 

created in Boston. Munro argued that 

visitors to the light displays would 

be confused and believe the works 

were associated with him. Trademark 

and trade dress laws are designed to 

prevent consumer confusion by barring 

a competitor from misrepresenting 

its own goods as those of the mark 

holder. Copyright laws are meant to 

protect against copying the creativity 

and originality of another (e. g., an 

abstract design or creative work). To 

the extent that Munro’s claims sought 

to protect the style of the light displays, 

the court found that the light display 

was the good itself and not a trademark. 

Infringement of an artist’s creative style 

is governed by copyright laws, so the 

court dismissed the claims as preempted. 

Munro’s additional state law claims 

(tortious interference, misappropriation, 

and unfair competition) also related 

to infringement of the artist’s creative 

style, which the court held were also 

preempted by the federal copyright laws. 

Munro v. Lucy Activewear, Inc., Civ. 

No. 16-79 JRT/KMM, 2016 U.S. Dist. 

LEXIS 135692 (D. Minn. 9/29/2016). 

n Trademark; untimely introduction of 

ab initio theory. Judge Frank recently 

dismissed a counterclaim for the cancellation 

of plaintiff’s trademark “SLEEP 

NUMBER.” After being sued by Select 

Comfort, defendants counterclaimed for 

the cancellation of plaintiff’s trademark, 

arguing that the mark was generic. Defendants 

argued an abandonment theory—that 

the mark holder’s actions had 

caused the mark to become generic by 

losing its significance in identifying the 

source (i.e., the producing company) of 

the product. Such actions, it was alleged, 

included referring to “SLEEP NUM- 

BER” as a feature of the bed instead of 

as the producer of the type of bed. Select 

Comfort moved for summary judgment 

that the mark was generic under the 

abandonment theory, which the court 

denied. Subsequently, and after the close 

of discovery, defendants withdrew their 

abandonment theory and put forward 

a generic ab initio claim, meaning that 

the mark was generic at the time the 

company adopted it as a trademark. In 

dismissing that counterclaim, the court 

found defendants had only sufficiently 

pleaded the abandonment theory and 

had not sufficiently pleaded the ab initio 

theory to put Select Comfort on notice. 

The court reasoned that it would have 

been “manifestly unfair to allow [d] 

efendants to pursue the ab initio claim 

at trial” because Select Comfort was not 

put on notice and discovery had already 

closed. Thus, the court found the new 

asserted theory improper and untimely 

and dismissed defendants’ counterclaim 

with prejudice. Select Comfort Corp. v. 

Baxter, et al., Civ. No. 12-2899 DWF/ 

SER 2016 U.S. Dist. LEXIS 147715 (D. 

Minn. 10/25/2016). 

TONY ZEULI & JOE DUBIS 

Merchant & Gould 

tzeuli@merchantgould.com 


Notes&Trends 

REAL PROPERTY 

JUDICIAL LAW 

n Residential lease; security deposit. 

Tenants occupied a multi-level house 

pursuant to a written lease. The lease 

allowed dogs, but prohibited the dogs 

from entering the basement and second 

floor of the premises. The tenants admitted 

that their dogs made it into the 

prohibited areas several times, but the 

dogs caused no damage in the prohibited 

areas. After the tenants moved out of 

the house, the landlords retained the 

entire $2500 security deposit and $1000 

pet deposit because the dogs were in 

the prohibited areas. The lease provided 

that the tenants would forego the 

security deposit if the dogs were found 

to be in the prohibited areas. The tenants 

commenced an action in conciliation 

court for the return of the security 

deposit and the conciliation court ruled 

that the forfeiture clause in the lease was 

unenforceable pursuant to Minnesota 

Statutes §504B.178, Subds. 3(b) and 10, 

and also ruled that the retention of the 

security deposit constituted bad faith by 

the landlord under Minnesota Statutes 

§504B.178, Subd. 7 and awarded the 

tenants $1,000 in punitive damages. 

Landlords appealed to the district 

court. The district court affirmed the 

conciliation court’s determination that 

the forfeiture clause in the lease was 

unenforceable and that the retention of 

the security deposit constituted bad faith 

and affirmed the $1,000 punitive damages 

award. After a bench trial, the district 

court did award to the landlords $640 

for damages beyond ordinary wear and 

tear (unrelated to the dog issue), and 

ordered that the balance of the security 

deposit be returned. Finally, the district 

court awarded costs and attorney fees 

to the tenant pursuant to a provision in 

the lease that allowed costs and attorney 

fees to be awarded to the prevailing 

party “in a lawsuit about the tenancy.” 

The court of appeals affirmed the district 

court. An attempt to waive Minnesota 

Statutes §504B.178 in a lease provision 

by having the tenant agree to forfeit a 

security deposit as a remedy for violating 

a lease provision that does not require a 

payment of funds to the landlord is void 

and unenforceable. The court of appeals 

also affirmed the bad faith finding and 

affirmed the $1,000 punitive damages 

award because the statutory amount 

for punitive damages is $500 for each 

deposit; and in this case, there was a 

security deposit and a pet deposit that 

were unlawfully retained. Despite the 

fact that the district court awarded $640 

for actual damages unrelated to the dog 

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issue, the court of appeals affirmed the 

attorney fees award because the bulk of 

the dispute involved the retention of the 

deposits based on the dogs being present 

in prohibited areas. Kaeding v. Auleciems, 

A16-0479, 2016 WL 6463996 

(Minn. Ct. App 2016). 

n Bankruptcy lien avoidance; judicial 

liens. The creditor obtained judgment 

against husband and filed a notice of 

foreign judgment in a county where 

husband and wife owned real property 

as tenants in the entirety. Husband subsequently 

filed a chapter 7 bankruptcy, 

listed the property as his homestead 

exemption, and moved to avoid the 

judicial lien as an unenforceable lien 

under 11 U.S.C. §522(f)(1). The bankruptcy 

court avoided the judicial lien 

pursuant to 11 U.S.C. §522(f)(1). The 

Bankruptcy Appellate Panel affirmed 

the avoidance because the judgment was 

against husband only and was therefore 

unenforceable against property owned 

by tenants in the entirety. The BAP 

surmised that it was doubtful that the 

judgment was a lien under Missouri 

law, but made no findings or ruling on 

that issue. The 8th Circuit reversed and 

remanded. The 8th Circuit held that it 

was unlikely that the judgment lien was 

a lien under Missouri because the judgment 

was against only one of the spouses 

and the title to the property was held by 

both spouses as tenants in the entirety. 

The 8th Circuit concluded that when 

state law does not allow a lien to attach, 

avoidance under 11 U.S.C. §522(f) is 

superfluous and without application. 

Because the bankruptcy court did not 

make any findings or conclusions on 

whether the judgment was a lien under 

state law, the 8th Circuit remanded the 

issue to the bankruptcy court to decide 

the matter with the benefit of the adversarial 

process. In re O’Sullivan, No. 

16-1526 (8th Cir. 2016). 

MICHAEL KREUN 

Beisel & Dunlevy PA 

michaelk@bdmnlaw.com 

TAX 

JUDICIAL LAW 

n Property tax: Single-member LLC 

not “individual” for purposes of Green 

Acres. The Minnesota Supreme Court 

affirmed the tax court’s determination 

that Minnesota’s Green Acres statute 

does not authorize a taxing authority 

to disregard a single-member limited 

liability company as an entity separate 

from its owner. Richard T. Burke, the 

Notes&Trends 

only member of STRIB IV, used the the 

LLC solely as a landholding entity to 

shield himself from personal liability. 

The LLC held the subject property, and 

Mr. Burke did not live on the property. 

Portions of the property were leased 

for agricultural purposes, but neither 

Mr. Burke nor members of his family 

farmed the property. The LLC nonetheless 

claimed Green Acres treatment; 

such treatment would have resulted 

in a lower property tax burden. The 

Supreme Court, citing the purpose and 

plain language of the statute, refused to 

read into the statute permission for the 

taxing authority to disregard a singlemember 

LLC. “Individual” as used in 

the statute, the Court determined, has 

its ordinary meaning as “single natural 

person.” The statute’s silence with 

respect to single-member LLCs does 

not create an ambiguity, and the Court 

refused to enlarge the statute’s reach in 

the face of unambiguous language. The 

Court also rejected the taxpayer’s argument 

that since single-member LLCs are 

generally disregarded for tax purposes, 

the LLC should be disregarded for Green 

Acres purposes. Finally, the Court held 

that the interpretation of the statute did 

not lead to an absurd result, and the tax 

court’s decision was affirmed. STRIB 

IV, LLC fka Richard T. Burke I, LLC v. 

Hennepin Co., A16-0423 ___ N.W.2nd 

___ (Minn. 11/9/2016). 

n Property tax: Valuation supported by 

the record and within the tax court’s 

broad discretion. At issue in this property 

tax dispute was the valuation of the 

Menard’s home improvement retail store 

in Moorhead, Minnesota. The tax court 

adopted valuations (the dispute spanned 

several tax years) lower than the 

county’s assessment value but above the 

taxpayer’s expert appraiser’s valuation. 

Menard asserted several errors on appeal, 

including that the tax court erred 

by rejecting Menard’s expert appraiser’s 

highest and best use determination; and 

that the court made improper calculations 

when it determined the fair market 

value using the cost approach. Menard 

also argued that the tax court’s “de facto 

averaging” of the cost approach and 

the sales approach was not appropriate, 

and finally that the lower court failed 

adequately to explain its reasoning. Clay 

County also appealed, raising issues surrounding 

calculations and conclusions of 

the court’s sales and cost approaches. In 

a thorough opinion, the Supreme Court 

affirmed the tax court. The reviewing 

court determined that each of the tax 

court’s decisions was supported by evidence 

in the record, that the lower court 

properly exercised its discretion, and 

finally that its decision was explained 

adequately. Menard, Inc. v. Clay Co., 

A16-0415 (Minn. 11/9/2016). 

n Property tax: Natural-gas pipeline 

valuation affirmed in part, reversed in 

part, and remanded. In the underlying 

case, the tax court found that relator 

Minnesota Energy Resources Corporation’s 

(MERC) evidence was sufficient to 

overcome the presumptive validity of the 

commissioner’s valuation for four of the 

five years at issue. For the last year at issue, 

the tax court found that the market 

value of MERC’s property was higher 

than the commissioner’s valuation. 

Both parties appealed the judgment. 

MERC challenged four aspects of the 

tax court’s decision: its failure to adopt a 

company-specific risk factor; its rejection 

of the build-up method; its lack of 

explanation of the beta factor it applied; 

and its adoption of the Eurofresh standard 

for proving external obsolescence. 

The commissioner challenged two 

grounds of the tax court decision: the 

deductions made by the tax court for intangible 

assets and working capital and 

the tax court’s rejection of the market 

approach without at least considering 

the sales price paid by Integrys (of which 

MERC is a wholly owned subsidiary) in 

2006. The Supreme Court found that 

the evidence supported the tax court’s 

decision not to include an additional 

company-specific risk factor in its cost 

of equity. The Supreme Court held that 

the tax court erred when it failed to explain 

its weighing of the beta factors and 

when it applied the Eurofresh standard 

for external obsolescence and reversed 

and remanded on those issues. Finally, 

the Supreme Court found that the tax 

court did not clearly err on the remaining 

four grounds of appeal. 

The tax court’s decision to exclude 

a company-specific risk factor was a 

factual determination, based on conflicting 

testimony by experts, rather 

than a legal conclusion. As a result, the 

Supreme Court reviewed it for clear 

error. The Supreme Court determined 

that it could not say the tax court erred 

on the company-specific risk factor, as 

the tax court was in the best position to 

weigh conflicting opinions by the parties’ 

experts. The Supreme Court concluded 

that the tax court did not clearly err 

when it declined to use the build-up 

method in its cost of equity calculation 

on similar grounds. 

Beta factors are used within corporate 

finance to compare the “relative 

volatility of a specific investment compared 

to the volatility of the market as a 


Notes&Trends 

whole.” (Minn. Energy Res. Corp. at 12.) 

While the tax court’s beta factor could 

be isolated within the cost of equity 

formula, the tax court failed to provide 

an explanation of how it selected the 

specific value. As a result, the Supreme 

Court reversed and remanded on this 

issue for further explanation. 

The tax court adopted a standard of 

external obsolescence from Eurofresh, 

Inc. v. Graham County., 187 P.3d 530 

(Ariz. Ct. App. 2007) that requires the 

taxpayer to offer probative evidence that 

the obsolescence actually affects the 

subject property. This standard has been 

used previously in at least two other 

cases since 2009. The Supreme Court 

declined to adopt the Eurofresh standard 

on the following grounds: The Supreme 

Court has never required use of the 

heightened standard and the fact that 

a taxpayer cannot identify and quantify 

specific factors does not mean that the 

property does not suffer from external 

obsolescence. On remand, the tax court 

will need to evaluate MERC’s evidence 

of external obsolescence without using 

the Eurofresh standard. 

The commissioner’s first argument 

on cross-appeal concerned the taxability 

of intangible property and working 

capital under Minnesota law. The tax 

court used Northwest Airlines to support 

its decision to deviate from the commissioner’s 

valuation formula. The Supreme 

Court found that reasoning to be incorrect, 

but held that the administrative 

rules grant the tax court the authority to 

deviate from that formula to ensure that 

all relevant data pertaining to valuation 

was considered. 

Finally, the commissioner’s second 

argument concerned the tax court 

declining to use evidence of the 2006 

sale of MERC into its calculation for 

the market value. The Supreme Court 

rejected the commissioner’s argument 

for the following reasons: The MERC 

sale included the overall value of the 

enterprise, rather than just the pipeline 

distribution system; there are no administrative 

rules or statutes that require the 

tax court to consider this evidence; and 

the experts did not rely on the market 

approach or MERC’s 2006 sale. Minn. 

Energy Res. Corp. v. Comm’r, A15- 

0422 and A15-0438 (Minn. 11/9/2016). 

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n Self-represented litigants held to 

same standard as other litigants. In correspondence, 

the commissioner notified 

F&G Beauty that an order for unpaid 

sales and use tax would be forthcoming. 

Prior to issuance of an order or decision, 

F&G appealed the correspondence to 

the tax court. Despite warnings from 


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the commissioner that the correspondence 

was not an appealable order, F&G 

Beauty continued its attempted appeal 

of the order, stating that it did not trust 

the commissioner or her staff. Because 

the correspondence was not an order 

or decision, the tax court granted the 

commissioner’s motion to dismiss due to 

lack of subject matter jurisdiction. F&G 

Beauty Supply v. Comm’r, 2016 WL 

6583849 (Minn. T.C. 10/26/2016). 

n Commissioner’s prima facie validity 

does not include substantive deference 

to commissioner’s discretionary 

appraisal judgments. In a dispute 

surrounding a proposed utility assessment, 

the tax court concluded that the 

commissioner willfully failed to disclose 

the Eyre Draft (the Commissioner’s appraiser’s 

draft) to CenterPoint. The tax 

court found that the interests of justice 

required acceptance of the draft into the 

summary judgment record as sufficient 

evidence that created a genuine issue 

of material fact to rebut the prima facie 

validity of the commissioner’s valuation. 

In response, the commissioner argued 

that her statutorily granted prima facie 

validity entitles her to summary judgment. 

The court rejected her argument. 

First, the court pointed out that a prima 

facie case merely results in a shift of the 

evidentiary burden to the nonmoving 

party. CenterPoint at *8. The nonmoving 

party must present substantial evidence 

that permits a reasonable person to draw 

different conclusions regarding a material 

fact. By providing this evidence, the 

nonmoving party both “defeats the prima 

facie validity and forecloses summary 

judgment.” Minnesota case law has established 

that market value—the point 

at issue in the commissioner’s order—is 

a question of fact. See e.g. SMBSC, 737 

N.W.2d at 558. The tax court rejected 

the commissioner’s proposed interpretation 

of Rule 8100, concluding that “we 

will not allow the commissioner to use 

as a bludgeon to crush all challenges, a 

shield only meant to protect her utility 

assessments only from insubstantial 

ones.” Thus, CenterPoint’s fee appraisal 

conducted by Mr. Tegarden was 

substantial evidence that overcame the 

commissioner’s prima facie validity and 

defeated her motion for summary judgment. 

CenterPoint Energy Res. Corp. v. 

Comm’r, 2016 WL 6068337 (Minn. T.C. 

10/14/2016). 

LOOKING AHEAD 

n State tax election developments. 

Several of Minnesota’s sister states had 

interesting tax issues on the November 

ballot. For example, voters rejected new 

Notes&Trends 

taxes in Washington state (rejected a tax 

on carbon) and Colorado (rejecting an 

income tax increase for universal health 

care). Voters in some states and cities, 

however, approved new or increased 

taxes: California, for example, approved 

a high-earner income tax extension, and 

soda, tobacco, and sales tax increases 

dedicated to mass-transit were enacted 

in some cities. One thing that voters 

seemed to agree on: legalization and 

taxation of marijuana. It was approved 

in every state in which it was on the 

ballot. Interested readers can find a 

thorough listing of state tax initiatives 

and outcomes at the Tax Foundation 

website, www.taxfoundation.org. 

MORGAN HOLCOMB 

Mitchell Hamline School of Law 

morgan.holcomb@mitchellhamline.edu 

JESSICA DAHLBERG, Grant Thornton 

Jessica.Dahlberg@us.gt.com 

TORTS & INSURANCE 

JUDICIAL LAW 

n Underinsured motorist; statute of 

limitations and ripeness. In April 2012, 

plaintiff suffered injuries in a motor 

vehicle accident that took place in Iowa. 

After plaintiff’s former counsel failed to 

sue the tortfeasor within Iowa’s two-year 

statute of limitations, he filed a malpractice 

suit. Plaintiff and his prior counsel 

agreed to settle that claim, and provided 

plaintiff’s insurer with a Schmidt-Clothier 

notice. Plaintiff also filed suit against his 

insurer seeking underinsured motorist 

benefits. The district court granted the 

insurer’s motion to dismiss for failure to 

state a claim upon which relief can be 

granted. 

The Minnesota Court of Appeals affirmed. 

The court held that a condition 

precedent to a claim for underinsured 

motorist benefits is recovery from the 

tortfeasor, either through a judgment 

in excess of policy limits or settlement. 

Here, the statute of limitations precluded 

plaintiff from recovering from the 

tortfeasor. Because plaintiff could not 

recover from the tortfeasor—a condition 

precedent to a claim for underinsured 

motorist benefits—dismissal of 

his complaint was proper. Ronning v. 

State Farm Mut. Auto. Ins. Co., No. 

A16-0538 (Minn. Ct. App. 11/7/2016). 

http://mn.gov/law-library-stat/archive/ctappub/2016/opa160538-110716.pdf 

JEFF MULDER 

Bassford Remele 

jmulder@bassford.com 


Books&Bytes 

Bytes 

* Go to mnbar.org/discounts 

for discounts on ABA Books 

and other vendors 

n Democratizing Legal 

Services: Obstacles and 

Opportunities exposes why 

it is easy to 

access legal 

services for 

some, while 

it is virtually 

impossible for 

others, and 

why some 

lawyers have 

successful 

careers, but 

others do not. Laura Snyder 

argues that the problems 

plaguing legal services in the 

U.S. can only be addressed 

by a radical overhaul of the 

rules that govern how legal 

services may be delivered, 

as well as radical changes to 

who exercises the power to 

make those rules. Through 

interviews with experienced 

alternative legal service 

providers, this book exposes 

the formidable obstacles that 

exist along the path to those 

changes, as well as the opportunities 

that await. 

(Lexington Books, $100; 

www.notjustforlawyers.com) 

n In Women and Leadership, 

legal scholar Deborah 

L. Rhode focuses on women’s 

underrepresentation in 

leadership roles, asking why it 

persists and what we can do 

about it. 

Although 

organizations 

generally 

stand to 

gain from 

increasing 

gender 

equity in 

leadership, 

women’s underrepresentation 

remains pervasive. Rhode 

explores the reasons, including 

women’s family roles, 

unconscious gender bias, and 

exclusion from professional 

development networks. She 

surveys a range of professions—politics, 

management, 

law, and academia—and 

draws from a survey of 

prominent women to develop 

solutions that can successfully 

chip away at the imbalance. 

(Oxford University Press, $29.95, 

global.oup.com) 

n Grace and Justice 

on Death Row: A Race 

Against Time to Free an 

Innocent Man tells the story 

of Alfred Dewayne Brown, 

a man who spent 12 years in 

prison (10 of them on Texas’ 

infamous 

death 

row) for a 

high-profile 

crime he 

did not 

commit, 

and his 

lawyer, 

Brian 

Stolarz, 

who dedicated his career and 

life to securing his freedom. 

The book chronicles Brown’s 

extraordinary journey to freedom 

against very long odds, 

overcoming unscrupulous 

prosecutors, corrupt police, 

inadequate defense counsel, 

and a broken criminal justice 

system. The book examines 

how a lawyer-client relationship 

turned into one of 

brotherhood. 

(Skyhorse Publishing, $24.99, 

www.skyhorsepublishing.com) 

n Insurance Claims and 

Issues includes selected 

postings from Dennis J. Wall’s 

two highly acclaimed blogs, 

the Insurance Claims and 

Issues blog and the Insurance 

Claims Bad Faith Law blog, 

providing readers with discussions 

of leading-edge issues 

that have been published in 

those blogs in recent years. 

The result is a collection of 

insurance topics that reflect 

the day-to-day conversations 

NEW RELEASES 

about legal issues, but 

organized topically to make 

the conversations accessible 

for practicing attorneys 

dealing with particular issues 

in their practice. 

(Thomson Reuters, $59.95, 

legalsolutions.thomsonreuters.com) 

n In 1980, 

prompted 

by rising 

Medicare 

costs, 

Congress 

passed a 

series of 

provisions 

referred to 

collectively 

as the Medicare Secondary 

Payer Act (MSP Act), establishing 

Medicare as a “secondary 

payer” to certain other 

insurance plans referred to as 

“primary plans.” Sponsored 

by the ABA Health Law Section, 

What Are...Medicare 

and Medicaid Secondary 

Payer Laws? will assist the 

reader in understanding the 

obligations stemming from 

the MSP Act and supporting 

regulations as they affect 

parties litigating and resolving 

personal injury claims. 

(ABA Books, $59.95, shopaba.org*) 

n e-Discovery for Everyone 

is an introduction to 

e-Discovery that avoids overtechnical 

language without 

being superficial, and manages 

to be interesting and at 

times even 

amusing. 

Sprinkled 

throughout 

are very 

helpful 

references 

to cases, 

secondary 

sources, and 

other materials 

that give the book depth 

beyond its relative brevity. 

A quick look at the table of 

contents shows an impressive 

inventory of the most 

important e-Discovery topics 

of the day: new methods of 

search and review, a discussion 

of the 2015 amendments 

to the Federal Rules of Civil 

Procedure, practical advice 

on litigation holds, how to 

evaluate the reasonableness 

of e-Discovery vendor bills, 

the advantages of transparency 

in selecting how to design a 

search for digital information, 

why cooperation during the e- 

Discovery process is essential 

to success, ethical issues associated 

with e-Discovery, and 

how to confront and control 

e-Discovery abuses. 


n Set in the United States 

Attorney’s Office for the 

Central District of California, 

Santa Ana Branch Office, 

Deadly Force is the first 

installment of a trilogy of legal 

thrillers based around tough 

federal prosecutor Lizzie 

Scott. When 

a Riverside 

County sheriff’s 

deputy 

is accused 

of shooting 

a suspect to 

death, Scott 

is handed 

her worst 

nightmare: 

an excessive force case against 

a cop. If Scott indicts the deputy, 

she risks losing the trust 

of her fellow law enforcement 

agents. If she wins the case, 

she risks even more. The 

indicted sheriff knows where 

she lives and has threatened 

her life. Lose the case and 

a killer walks, justice fails, 

and Scott’s career is in peril. 

Author Jonathan Shapiro is 

an Emmy Award-winning 

producer and writer of The 

Blacklist, The Practice, Boston 

Legal, and Trial. 



People&Practice 

Practice 

n Leatha Wolter 

has been elected 

to Meagher & 

Geer’s management 

committee 

to serve a five-year 

term. Wolter is also 

the lead partner of 

the firm’s antifraud 

counseling & 

Leatha Wolter 

litigation practice 

group. For more than 25 years, Wolter 

has concentrated on counseling insurers 

and other clients on strategies designed 

to address internal and external fraud. 

n Nicholas W. Anderson has joined 

Johnson, Killen & Seiler as an associate. 

Anderson is a 2016 graduate, cum 

laude, of the University of Minnesota 

Law School. 

n The Board of 

Public Defense has 

appointed Jim Fleming 

2nd Judicial 

District chief public 

defender. Fleming 

was a partner in the 

Mankato law firm 

of Maschka, Riedy 

Jim Fleming & Ries, where he 

practiced in the 

areas of criminal defense and personal 

injury. Prior to private practice, Fleming 

was the chief public defender in the 5th 

Judicial District from 2001 to 2007. 

n John A. Richter has joined Best & 

Flanagan as an associate in its business 

law section. Richter is a recent graduate 

of the University of Iowa College of Law 

and works with individuals, closely held 

businesses, non-profit organizations, and 

corporations across a variety of industries. 

n Gabriel “Gabe” Johnson joined the 

Law Offices of Schroeder & Mandel, LLC 

handling cases involving workers’ compensation, 

no-fault arbitrations, and personal 

injury litigation. Johnson, a graduate 

of the University of Minnesota-Duluth 

and California Western School of Law, has 

practiced in Minneapolis and Duluth. 

n Elizabeth B. Bryant and Michael D. 

Dittberner have been Board Certified 

as Family Law Trial Advocates by the 

National Board of Trial Advocacy (a 

Minnesota Board of Legal Certification 

Accredited Agency). Bryant and Dittberner 

are both shareholders with Linder, 

Dittberner, Bryant & Winter, Ltd. 

n John H. Stout 

was elected a 

Fellow of the 

American College 

of Governance 

Counsel. Stout 

advises executives, 

boards, and 

individual directors 

and officers of forprofit 

and nonprofit 

John H. Stout 

organizations on a variety of domestic 

and international governance matters. 

Stout is an attorney at Fredrikson & 

Byron and co-chairs the firm’s corporate 

governance and business sustainability 

& social responsibility group. 

n Bradley R. Bultman joined Larson 

· King as an associate. Bultman will 

continue to represent clients in complex 

litigation matters, including product liability, 

toxic tort, and business litigation. 

While working at a prominent litigation 

firm in Chicago, Bradley served both as 

national coordinating counsel and local 

counsel in mass tort and toxic tort cases. 

n Child Support Magistrate Jim 

Brinegar is retiring after nearly 

15 years on the bench, mainly in the 

4th and 10th judicial districts. He had 

a previous career as a psychologist and 

university professor, and thinks that 

law was more fun, though more 

demanding at times. Brinegar also 

taught family law at William Mitchell 

for five semesters. Employed in some 

capacity since 1962, Brinegar says it is 

time to sleep in more often. 

n Kirby C. Graff joined Sanford, 

Pierson, Thone and Strean, PLC in 

October 2016 as an associate. Graff 

received his J.D. in 2013 from the 

University of North Dakota School of 

Law. His legal practice focuses primarily 

on civil litigation and creditor remedies. 

Also, Cole A. Hickman was named a 

partner at the firm. His primary practice 

areas include estate planning and 

representing closely held businesses. 

Hickman is licensed to practice law in 

Minnesota and North Dakota state courts 

as well as the U.S. District Court for the 

District of Minnesota. 

n David Schultz, 

a partner in 

Maslon LLP’s 

litigation group, 

was honored with 

the 2016 Never 

Forgotten Award 

by the Innocence 

Project of Minnesota 

during its David Schultz 

2016 Benefit for 

Innocence on November 10. The award 

is a way to recognize individuals who act 

to improve the justice system by going 

above and beyond ordinary efforts to 

overturn wrongful convictions. 

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n Howard 

Tarkow was honored 

with the 2016 

Sidney Barrows 

Lifetime Commitment 

Award by the 

Twin Cities Cardozo 

Society during 

its Seventeenth 

Howard Tarkow Annual Dinner on 

November 2, 2016. 

The award is given annually to a senior 

attorney or judge in the Twin Cities 

who exemplifies excellence in his/her 

practice, community service in the Jewish 

and general community, and life-long 

learning. Tarkow is a partner at Maslon 

LLP in the labor & employment group. 

n Vildan Teske and David Goodwin 

have been elected to the Federal Bar 

Association Board of Directors and were 

sworn in at the FBA Annual Meeting 

and Convention held Sept. 14-17 in 

Cleveland, Ohio. Teske is a founding 

partner of Teske, Micko, Katz, Kitzer 

& Rochel in Minneapolis. She has a 

national practice focused on complex 

litigation on behalf of consumers, employees, 

and service members. Goodwin 

is an attorney with Gustafson Gluek 

PLLC, which focuses on complex class 

action litigation, antitrust, consumer 

protection, and mass torts. 

n Fredrikson & Byron announced the 

addition of four associates to the firm’s 

Minneapolis office. Nadja Baer has 

joined the advertising, marketing & 

trademark, data protection & cybersecurity 

and internet, technology & 

e-commerce groups; Jonathan P. Baker 

has joined the litigation group; Ashley 

D. Brosius has joined the corporate 

governance, mergers & acquisitions, 

private equity, and securities groups; and 

Anne Rondoni Tavernier has joined 

the intellectual property, litigation, and 

trade secrets groups. 

People&Practice 

n Adam J. Kaufman joined Henningson 

& Snoxell, Ltd. as an associate in the 

estate planning department. Kaufman 

will focus his practice on estate planning; 

probate and estate administration; 

and elder law. Prior to joining the firm, 

Kaufman was a partner in a general 

practice Twin Cities law firm. 

n Sam Cook and Tammi Etheridge have 

joined Maslon LLP as associates. Cook 

joins the business & securities group 

and focuses his practice on mergers 

and acquisitions and general counsel 

services. Etheridge joins the litigation 

group and represents clients in complex 

commercial disputes. 

n Brad Pedersen 

has been elected 

to a three-year 

team on the Board 

of Directors for 

the American 

Intellectual 

Property Law 

Association. 

Brad Pedersen Pedersen is a 

partner with 

Patterson Thuente Pedersen, PA and 

chair of the firm’s patent practice group. 

n Lindquist & Vennum announced it 

has hired eight associates to join the 

firm’s Minneapolis office. Jessica M. 

DuBois joins the employment & employee 

benefits practice group. Gretchen 

L. Gurstelle joins the commercial litigation 

practice group. Jenna K. Johnson 

joins the commercial litigation practice 

group. Catherine M. LaGrange joins 

the financial institutions practice group. 

Alissa N. Mitchell joins the real estate 

practice group. Christopher M. Proczko 

joins the commercial litigation practice 

group. Neal K. Rasmussen joins the 

mergers & acquisitions practice group. 

Jacob N. Westlund joins the financial 

institutions practice group. 

In Memoriam 

HON. BRUCE KRUGER passed away 

on November 2, 2016. His common 

sense and humor was valued by all 

who appeared before him as a court 

official or sought his advice. He had 

a distinguished career as a district 

court judge and probate court referee 

stretching all the way back to 

the Marjorie Congdon estate case 

in Duluth to many probate cases in 

Hennepin County. Most of all, he 

was a very decent human being. 

n Olivia M. Cooper has joined 

Brownson & Linnihan, PLLP. Cooper 

will focus her practice in insurance coverage, 

asbestos defense, and regulatory 

law. Cooper received her J.D. from the 

University of Minnesota Law School. 

n Jeffrey M. Baill, 

managing partner 

of Yost & Baill, 

LLP, was recently 

appointed Director 

at Large on 

the United States 

Tennis Association 

Board of Directors. 

Jeffrey M. Baill 

The USTA is the 

national governing body for the sport of 

tennis in the U.S. and consists of 750,000 

members. It is a not-for-profit organization 

that also owns and operates the U.S. 

Open. Baill has served in many roles as a 

UTSA National volunteer, and was the 

inaugural recipient of the USTA Volunteer 

Exceptional Service Award in 2016. 

n Karen Schlotthauer has joined 

Fafinski Mark & Johnson, PA as senior 

counsel in its trusts & estates practice 

group. Schlotthauer will continue her 

practice of counseling clients on all 

aspects of estate planning. 


Opportunity Market 

ATTORNEY WANTED 

LUND ROSS, PA in St. Cloud, Minnesota, 

is seeking an Associate Attorney 

interested in business, real estate, employment, 

estate planning, and family 

law litigation and transactional matters. 

Qualified applicants must have a strong 

attention to detail, outstanding dedication 

to clients, and be a self-starter. New 

attorneys and attorneys with judicial law 

clerk experience encouraged to apply. 

Please send a cover letter, resume, references, 

and writing sample to info@ 

lundrosslaw.com. All submissions will 

be kept confidential. 

sssss 

ASSISTANT Attorney General. The Office 

of the Minnesota Attorney General 

is accepting resumes from experienced 

attorneys who are interested in public 

service and representing the government 

and people of Minnesota. This attorney 

appears on behalf of the State of 

Minnesota in state and federal district 

and appellate courts in notable, complex 

cases that impact the daily lives of the 

people of Minnesota. Service with the 

office gives attorneys the opportunity to 

make a positive difference for our State. 

Requirements. Our selection process is 

highly competitive. Applicants should 

have successful legal practice experience, 

impeccable research, writing, 

and communication skills, outstanding 

academic credentials, good work ethic, 

character and judgment, and a strong 

professional drive. Service with the office 

may qualify applicants to have part 

of their student loans forgiven under the 

federal student loan forgiveness program 

that applies to state government 

employees. (For more information, 

visit: www.studentaid.ed.gov/sa/repayloans/forgiveness-cancellation/publicservice.) 

Applications. Please submit a 

cover letter and resume that includes 

relevant experience and academic credentials 

to: Office of the Minnesota Attorney 

General, Attention: June Walsh, 

445 Minnesota Street, Suite 900, St. 

Paul, MN 55101, ag.jobs@ag.state. 

mn.us, The Office of the Attorney General 

is an equal opportunity employer. 

If you need reasonable accommodation 

for a disability, please call June Walsh at: 

(651) 757-1199 or (651) 297-1410 (TTY) 

sssss 

ASSOCIATE Attorney – Corporate/Finance. 

Fredrikson & Byron, PA, Minneapolis, 

MN, is seeking a debt finance associate 

with zero to three years’ experience 

representing borrowers and lenders in 

sophisticated commercial loan transactions. 

The ideal candidate should have 

experience in private practice working 

on sophisticated deals involving a variety 

of debt financing transactions, including: 

acquisition financings, private equity borrowing, 

and asset based lending. Some 

experience with commercial real estate 

loans is also preferred. A background in 

accounting and/or finance is a plus. We 

are an EEO/AA employer. Apply online at: 

fredlaw.com/careers. 

sssss 

CADWELL SANFORD Deibert & Garry 

LLP, seeks an attorney to work primarily 

in the firm’s business, transactional and 

estate planning practice areas. Zero to 

five years of practice experience in one 

or more of these areas is preferred. Confidential 

inquiries, including resume and 

cover letter detailing experience should 

be directed to Scott Perrenoud, Cadwell 

Sanford Deibert & Garry, LLP, PO Box 

2498, Sioux Falls, South Dakota 57101- 

2498 or by email to: job@cadlaw.com. 

sssss 

BLUE CROSS Blue Shield is looking for 

an Attorney Senior to prepare and review 

contracts involving licenses, purchases, 

real estate and other matters. Provide 

legal advice with respect to administration 

and prepare resolutions. Study existing 

statutes and regulations affecting 

the organization. Review and approve 

correspondence and statements from 

a legal standpoint. Anticipate and guard 

against legal risks involving the organization. 

Counsel management on the legal 

handling of business transactions such 

as leases and contracts. Develop and 

review corporate governance and compliance 

procedures. Must have degree 

in law and admission to the state bar 

and a minimum of five years in: health 

insurance and health plan statutory and 

regulatory requirements in Minnesota, 

interaction with Federal law, health care 

reform and Affordable Care Act compliance, 

health plan operations with CO- 

BRA and coordination of benefits. Apply 

at http://bit.ly/2g2EgS0. 

sssss 

CLOQUET law firm seeking attorney 

with zero to three years’ experience, 

looking to permanently relocate. Experience 

or interest 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: sandy@cloquetlaw.com. 

sssss 

OUR MINNEAPOLIS office has immediate 

openings for attorneys in our 

Family Law Practice. Both associate 

& partner level positions. Applicants 

should have five plus years’ experience 

practicing in family law. Opportunity 

to step into leading role with talented 

team. Ideal candidate possesses strong 

organizational, interpersonal, writing, 

and analytical skills. Open to bringing 

on small firm with existing support 

staff. Email cover letter and resume to: 

careers@attorneysinmn.com. 

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 employ ment opportu nity. 

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 


OpportunityMarket 

DOWNTOWN Minneapolis firm seeking 

criminal defense attorney with two 

to five years of experience in criminal 

practice, on defense or prosecution 

side. Competitive salary and productivity 

based incentive pay. 401K and health 

insurance. Please submit cover letter, 

resume, and writing sample to: Lori De- 

Gidio at lori@stevemeshbesher.com. 

sssss 

EXECUTIVE Director position - Duluth, 

MN Legal Aid Service of Northeastern 

Minnesota (LASNEM) is seeking an Executive 

Director to lead a strong clientcentered 

organization providing civil legal 

services to low-income and seniors 

with in an 11-county region in NE MN. 

Applicant must have proven leadership, 

management, and supervisory 

skills and experience. LASNEM has a 

dedicated staff of 30 employees with 

offices in Duluth, Virginia, Grand Rapids, 

and satellite offices in Brainerd and 

Pine City. Complete job description is 

available upon request at: application@ 

lasnem.org. Please provide: Resume 

along with three professional references, 

please include contact information. 

Cover letter expressing in detail your 

interest in the position, your qualifications, 

and what you hope to contribute 

to the organization’s future. Documentation 

of current bar licensure. By Dec. 

19, 2016 to application@lasnem.org. 

sssss 

FREDRIKSON & BYRON, PA seeks an 

attorney with two to five years of wideranging 

transactional real estate experience 

to join our real estate department. 

We are looking for a highly motivated 

individual with excellent interpersonal, 

analytical, and writing skills, along with 

strong academic and professional credentials. 

Apply online at: www.fredlaw. 

com/careers. EEO/AA 

sssss 

MESSERLI & KRAMER PA in downtown 

Minneapolis is seeking an associate 

attorney focusing on banking transactional 

matters. Successful candidates 

will five years of substantial experience 

in commercial lending transactions, including 

negotiating and drafting loan 

documentation, title and survey review, 

and reviewing due diligence materials. 

Candidates must also have substantive 

experience with construction financing, 

participations, bond financing and working 

lines of credit. We are looking for a 

highly motivated individual with excellent 

interpersonal, analytical, and drafting 

skills, along with strong academic 

and professional credentials along with 

the ability to prioritize and multi-task 

and work independently with minimal 

supervision. This is a great opportunity 

to become part of a talented team in a 

great work environment. We are looking 

for highly motivated talent to help deliver 

great service to our clients and expand 

our presence in the local and regional legal 

market. We offer a competitive salary 

and benefit program. If you would like to 

join us, please send resume and cover 

letter along with salary expectations to: 

recruiting@messerlikramer.com. 

sssss 

NICHOLS KASTER, PLLP, a firm that focuses 

on representing employees and 

consumers in individual and class actions 

across the country, seeks an associate 

for its wage and hour litigation team. This 

position will be located at the firm’s Minneapolis, 

MN office. Two to five years of 

litigation experience preferred, wage and 

hour experience a plus. Travel required. 

Submit resume and writing sample to: 

tmorin@nka.com 

sssss 

ONE OF WISCONSIN’S oldest and most 

established civil litigation firms seeks an 

associate attorney with a minimum two 

years of litigation experience to join its 

Eau Claire office. Please submit resume 

and references in confidence to: Bench 

& Bar Box 303 c/o MSBA, 600 Nicollet 

Mall, #380, Minneapolis, MN 55402 

sssss 

PARTNER-LEVEL Business Attorney. 

JUX seeks a partner-level business attorney 

who wants to be part of our innovative, 

entrepreneurial transactional team. 

Learn more at: jux.law/careers. 

sssss 

TAX ATTORNEY. Fredrikson & Byron, PA, 

Minneapolis, MN, is seeking one or more 

experienced tax attorneys to support our 

business & tax planning, mergers & acquisitions, 

private equity, and tax controversy 

groups. The ideal candidate(s) will 

have at least five to seven plus years of 

significant experience with a broad spectrum 

of federal and state tax matters. 

This will include experience with partnership 

and corporate tax planning and 

transactional work, and expertise sufficient 

to independently manage the tax 

aspects of transactions. A LL.M in Tax or 

a CPA credential are preferred. We are an 

EEO/AA employer. Apply online at: fredlaw.com/careers. 

THE LEGAL Professionals PA is seeking 

an attorney for Duluth, MN area to 

practice in the areas of estate planning, 

real estate, probate & trust settlement, 

and elder law. Experience preferred. 

Send resume and three references in 

confidence to: nicolea@thelegalprofessionals.com 

or mail to: 106 ½ North 

Minnesota St, New Ulm MN 56073. 

OFFICE SPACE 

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. Reply to: Bench & Bar 

Box 304, c/o MSBA, 600 Nicollet Mall, 

#380, Minneapolis, MN 55402 

sssss 

OFFICE SPACE – Edina. Located off 

Hwy 494 between Hwys 100 and 169. 

Exceptional furnished office space in 

beautifully designed offices. Several 

window and interior offices available 

at rates very competitive to area. Services 

include reception and hospitality, 

telephone with voicemail, privacy 

shredding, conference room availability 

and shared kitchen. Option for virtual office 

with phone service and conference 

room access. (952) 835-4070 ask for 

Brenda. 

sssss 

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 needed. Contact Ardis Hafdahl at: 

(651) 271-2399 or at ahafdahl@hbgltd. 

net for more information. 

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 light-rail train or bus 

and be in your office in minutes. One- to 

three-person offices – base rent from 

$280 – $800. Services: personalized 

telephone answering, copier, fax, scanning. 

Witness and Notary services. Mail 

sorting and drop off documents, packages. 

Support staff and reception area. 

Judy Magy: (952) 851-9040. 


OpportunityMarket 

1955 UNIVERSITY Avenue - 163-542 

$16-$18 RSF. Built in 1980 renovated in 

2015. Located on the Green Line one 

block from the Fairview street station. 

Highly visible location on the corner of 

University Avenue West & Prior. Convenient 

location and easily accessible to 

highways 94 and 280 center of the Twin 

Cities. Property has ample parking. 

Please call to Jamie at (651) 755-7340. 

sssss 

NORTHWESTERN Building - 275 East 

4th Street, Saint Paul. Small to larger office 

spaces available for lease. Great for 

start-up attorneys. Monthly rates from 

$250 – $1229/month. Historic building. 

Lowertown. Lite Rail. Deli on 1st floor. 

Contact Wendy at (612) 327-2231 for a 

showing or check us out at www.northwesternbuilding.com 

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. 

sssss 

AVAILABLE Office-share (small ground 

floor office) on Grand Avenue near Snelling 

in St. Paul, MN $463 a month rent. 

Use of conference room and basic receptionist 

services include. Copies, faxes 

and postage extra. (651) 698-5506. 

sssss 

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 Woodbury). 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 

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 & Woodbury). From 

$59 monthly. Call Greg with Executive 

Suites of Minnesota at: (952) 851-5555 

or email: marketing@exsmn.com. For 

our current promotion, visit: www.exsmn.com/attorneys. 

sssss 

MINNETONKA offices for rent. Join 11 

independent, solo attorneys. Furniture, 

services available, 24/7 access. Gas 

fireplace in large office. Professional, 

convenient, friendly. Highways 7/101 

in Minnetonka. (952) 474-4406. minnetonkaoffices.com 

sssss 

OFFICE SHARE available in Minnetonka. 

Two large offices 225 Square Ft. each. 

One 140 Square ft. Reception included. 

Access to large conference room, copier, 

fax. See photos at: www.facebook.com/ 

Steele-Law-Offices-585792888241113. 

Please contact (612) 605-0722. 

sssss 

OFFICE SPACE and virtual office services 

in a community of the nicest high-quality 

lawyers you could ever meet, in a beautiful 

office suite with lots of natural light 

that is a cut above the rest. If your work 

environment and the people around you 

are important to you, you should check 

us out. www.morelawmpls.com or call 

us at (612) 206-3700. 

sssss 

OFFICE SPACE – 494 & France. Two fully 

furnished suites available on 8th and 9th 

floor of Northland Plaza with 4-5 windowed 

offices, phone, internet, conference 

and copy room. Cafe and fitness 

center on premises. Contact Todd at 952- 

283-2424 or todd@tbassinger.com. 

sssss 

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 

VIRTUAL Attorney services available in 

the heart of the Twin Cities (Midway). 

Professional and impressive to clients— 

not expensive. Free parking and wireless 

internet. Lakes & Plains Office Building, 

842 Raymond Avenue, St. Paul. Multiple 

conference rooms, law library, kitchenette, 

receptionist and lobby; attorney 

collaboration and interaction. Call Mick 

at: (651) 647-6250 or email: mick.lakesplains@gmail.com 

LAW FIRM has three individual offices 

available for lease at 4525 Allendale 

Drive in White Bear Lake. Enjoy all-inclusive 

pricing (rent, phone system, internet 

and receptionist). First month is 

free with year lease. May be rented furnished. 

Contact Nichole Lorenz at: (651) 

426-9980 or nichole@espelaw.com. 

PROFESSIONAL SERVICES 

WANT BETTER clients? Steve Stauff 

partners with attorneys on improving 

their business via the web. Contact 

today! steven.stauff@thomsonreuters. 

com – (651) 323-7684. 

sssss 

ATTORNEY COACH / consultant Roy 

S. Ginsburg provides marketing, practice 

management an strategic/succession 

planning services to individual lawyers 

and firms. www.royginsburg.com, 

roy@royginsburg.com, (612) 812-4500. 

sssss 

EXPERT WITNESS Real Estate. 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 

sssss 

PARLIAMENTARIAN, meeting facilitator. 

“We go where angels fear to tread. TM ” 

Thomas Gmeinder, PRP, CPP-T: (651) 

291-2685. THOM@gmeinder.name. 

sssss 

VALUESOLVE ADR. Efficient. Effective. 

Affordable. Experienced mediators and 

arbitrators working with you to fit the 

procedure to the problem – flat fee mediation 

to full arbitration hearings. (612) 

877-6400, www.ValueSolveADR.org 

sssss 

NAPLES, Florida-based probate, real 

estate and estate planning attorney 

licensed in Minnesota and Florida. 

Robert W. Groth, PA (239) 593-1444; 

rob@grothlaw.net 

Find more classified ads online at 

www.mnbenchbar.com 

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