It is fairly rare in Minnesota for there to be a dissent in a Minnesota Supreme Court decision regarding attorney discipline, but we have one this week in the case of Mr. Shawn Patrick Siders, who is suspended from the practice of law for two years after having been criminally charged with an attempt to pay a 15-year-old girl to have sex with him.

Justice McKeig, joined by Justice Lillehaug, dissented from the discipline proposed by the Office of Lawyers Professional Responsibility and approved by the majority of the Minnesota Surpeme Court. Justices McKeig and Lillehaug believe the discipline meted out to Mr. Siders was too lenient.

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Imagine a lawyer saying the following in closing argument in a civil trial:

“Ladies and gentlemen of the jury, my mother is here today. She’s right there, sitting in back of the courtroom… [To his mother:] “Hi, Mom.”] [stage direction: old lady waves to beloved son]…My mom taught me something. Something very important. She taught me never to lie. I take that lesson very seriously and I do not lie…”

Is that proper in a closing argument? Is this treacle grounds for a mistrial? If you were opposing counsel would you object? Move for a mistrial? Ask for a “curative jury instruction”?

If you were a juror, would you conclude that the lawyer does not lie because of this manipulative, almost childish, ploy? Would you conclude just the opposite (“this guy must think we’re complete idiots and is a condescending clown”)? Would it affect your decision-making at all?

We heard of the use of this tactic in a recent Minnesota civil trial through the grapevine.

One lawyer in the conversation was adamant that this would be grounds for a mistrial, as a form of impermissible “vouching.”

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Update (October 27, 2017): In the case described below, U.S. Magistrate Judge Becky R. Thorson (D. Minn.) has issued an order permitting the deposition of one of Plaintiff’s lawyers (excerpt of order linked here), leaving for another day whether Attorney Vang may be both counsel of record and a witness at trial…

Original Post (October 4, 2017): The Naca lawsuit has been a repeat source of posts on Minnesota Litigator already (here, here, here).

“This lawsuit is about whether Plaintiff Kristin Naca was discharged because she solicited sex from a student prior to graduation and commenced a sexual relationship with the student days after graduation (as Defendant Macalester College contends) or because of discriminatory animus toward her religion, sexual orientation, gender, race, and/or ancestry (as Plaintiff contends).”

Recently, the case raised an interesting issue that comes up from time to time: the problem of a lawyer who is also a fact witness. This causes some obvious problems. It is analogous to “breaking the fourth wall” in theater, where a critical illusion is shattered: lawyers are no longer advocates or “officers of the court” separate and apart from the underlying dispute. They are witnesses, perhaps co-conspirators, etc.

So how will the Court resolve the issue that Ms. Naca’s lawyer, Hlee Vang, appears to be an eye-witness to alleged sexual harassment by another Macalester professor whose supposed wrong-doing did not result in discipline, as Ms. Naca’s did?

The first issue, can Macalester’s lawyers depose Ms. Vang? Later, the question could be whether Ms. Vang can continue to represent Ms. Naca…

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"A Tough Knot to Crack" (photo by Jay Fanelli)

“A Tough Knot to Crack” (photo by Jay Fanelli)

Over the past seven years of practice, LEVENTHAL pllc has handled over a dozen claims for clients with claims of legal malpractice or claims related to legal malpractice (e.g., fee disputes) against Minnesota lawyers. All but one of the ten has been resolved favorably for our clients.

Over that same period of time, we have consulted with over 100 potential clients who feel strongly that they have been the victims of legal malpractice.

 

Why do so many people feel so strongly that they are the victims of legal malpractice but nine times out of ten we won’t take their cases?

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Photo by Jonathan Rotondo-McCord

A while back, we coined the phrase, “starving people eat poison,” hoping to illustrate vividly (and warn against) the risk that lawyers face when they are desperate for work. That’s when they tend to take on clients or cases that they normally would avoid.

In that post, we highlighted the misfortune that befell Minnesota lawyer, Todd Crabtree and his firm, Crabtree Health Law P.A. — namely that Mr. Crabtree fell for a “too-good-to-be-true” scam that has been making the rounds for several years. In essence, lawyers are tricked into cashing bogus checks. (The Crabtree firm turned around and sued Wells Fargo to recover from its losses due to the scam and then promptly dismissed the case voluntarily, perhaps recognizing that the claim was a loser.)

News came this week that Mr. Crabtree’s problems neither started nor ended with the scam to which he fell victim. The attached disciplinary petition suggests at least the possibility that Mr. Crabtree’s lapse in judgment in dealing with an internet scam was not his only lapse of judgment.

The petition is also generally useful for Minnesota lawyers to review as it highlights the earmarks of an internet scam and offers measures that lawyers can take to avoid being victimized.

Update (October 23, 2017)Blue Cross & Blue Shield of Minnesota v. Wells Fargo, the multi-year lawsuit described below (and the Jesse Ventura v. Chris Kyle litigation, covered ad nauseam previously (see here, here and here)) should teach litigators some critical lessons.

Today’s winners are tomorrow’s losers and, the day after tomorrow, the opposite. Lather, rinse, repeat.

Blue Cross Blue Shield (BCBS), represented by fine lawyers at the Robins Kaplan law firm, got smoked after years of litigating, with a defense jury verdict after a hard-fought trial. After an appeal, however, BCBS and its lawyers are back in the battle and hitting hard (see here and here). Now maybe Wells Fargo and its lawyers are on the ropes?

These dramatic reversals of fortune can be difficult to endure for clients and lawyers, alike. In our view, they reflect serious problems in our legal system (lack of clarity, lack of predictability (in addition to the related punishing expense)). On the other hand, these 180-degree swings teach us resilience, patience, tenacity, and, we hope humility, civility, and empathy.

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Plaintiff’s lawyers, Joseph Larson, David Schlesinger, and Janet Olawsky might be both crying and celebrating after the award of $305,000 in legal fees for their lawsuit brought on behalf of Stephanie Jenkins.

They might cry because they sought $818,000 in legal fees and costs and the Court awarded them less than half.

They might celebrate because a jury awarded their client a verdict of one dollar ($1.00) in the sexual harassment case they brought against the University of Minnesota and Mr. Ted Swem.

“The most critical factor” in determining an appropriate fee award is “the debris degree of success obtained.”

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Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Imagine you are a business, a corporation, and you sell off part of your business to one of your executives. After the sale, you are convinced that the buyer, your former fellow shareholder, ripped you off to the tune of millions of dollars by concealing “the true value” of the spun-off asset.

You sue him.

How frustrating would it be to have to pay his legal fees to defend against the lawsuit that you brought against him?

Any Minnesota lawyer experienced in shareholder disputes should be aware of the corporate indemnification statute, which sweeps quite broadly. But Plaintiffs Richard Born and RBA, in a shareholder dispute, apparently cannot accept that the law applies to them. A special litigation committee, hired by Plaintiff RBA, held that Defendant Reinhart was entitled to indemnification by RBA. RBA refused to pay. U.S. Mag. Judge David T. Schultz (D. Minn.) ordered that reimbursement for legal fees be advanced to Mr. Reinhart. RBA still refused to pay.

We’re not sure if all of the heated rhetoric in Defendant Reinhart’s recent brief (calling one of Plaintiff’s arguments “inexcusable” and another as “flailing desperation”) is productive or will be appreciated by U.S. District Court Judge Susan R. Nelson (D. Minn.). On the other hand, we can identify with the frustration when an adversary simply won’t step up and concede a position that has already been rejected repeatedly.

Mr. Kenneth Udoibok’s passions, it seems, are justice and empowerment. He’s a 20+ year solo Minnesota litigator who focuses on criminal defense, police brutality,  employment cases and insurance coverage cases. He fights for “the little guy.”

His story, his journey from Nigeria to the Minnesota, is extraordinary as he, himself, is. Our interview concludes with an obviously heart-felt and important message from Mr. Udoibok about our legal system, about fairness, and about the challenges we still face with regard to prejudice and bias.

ML: How did you get to where you are today?

Udoibok: I don’t know. Frankly, I think I have a very low self-esteem. I’m just kidding. No, how did I get here? I don’t know that it was calculated. It was happenstance.

ML: You’re a Nigerian man.

Udoibok: Yes.

ML: You’re a Minnesota lawyer.

Udoibok: Yes.

ML: You’re probably the only Nigerian man who’s a Minnesota lawyer, am I right?

Udoibok: No, there are many.

ML: Really?

Udoibok: There are probably about 20 of us in Minnesota?

ML: How does that happen? How is it that you were born in Nigeria, and here you are, a Minnesota lawyer.

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BunniesUpdate (October 11, 2017)Oops, I did it again…got lost in this game, oh baby. (Another successful prediction, below.) Congratulations to the winning lawyer team: Andrew L. Marshall, Mark R. Bradford, and Christine E. Hinrichs, Bassford Remele, P.A., Minneapolis.

Justice Gildea’s dissent (joined by Justice G. Barry Anderson) emphasizes that Minnesota is an employment-at-will state, where employers can fire for any or no reason (so long as there isn’t a statute providing otherwise implicated like anti-discrimination laws) (and employees can quit for any or no reason). The “anti-tip sharing statute” in Minnesota Fair Labor Standards act prohibits employers from requiring employees to share tips, but the dissenters argue that it does not provide for a wrongful discharge cause of action if an employer fires an employee for invoking his right under the statute.

Update (February 7, 2017): The Minnesota Supreme Court heard oral argument today in the case discussed here below last June. Counsel for Bunny’s Bar and Grill faced relentless tough questioning by the Minnesota Supreme Court and I predict that the Minnesota Court of Appeals’ decision (against Bunny’s) will be affirmed.

Original post (June 29, 2016): Who knew there was a Minnesota state law prohibiting employers from forcing employees to share gratuities (otherwise known as tips) that the employees receive on the job? (See Minn. Stat. 177.24, subd. 3.) Not the owners of the beloved St. Louis park establishment, Bunny’s Bar and Grill, apparently.

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