Update (August 27, 2013): Minnesota Litigator often makes predictions and wisely does not keep statistics on its accuracy because we sometimes get it wrong. I think I should get double points for the prediction below (1: Older lawyers tend not to do their own e-filing. 2: Filings on the eve of holiday breaks sometimes do not work out very well.)
Original post August 16, 2013): (Under the Subject Line, “Brodkorb v. Minnesota Senate: Salacious Material Combined with the Scent of Scandal…”): “Oops, did I say that?” When we hear such words in conversation we may note the barely perceptible hint of a grin of a malicious gossip. Or we might recognize a genuine social gaffe, an innocent lapse. The former often seems to be accompanied by a sideways glance or a sparkle in the eye. The latter by the rush of blood to the face. These are “tells” that most of us cannot successfully conceal.
Sometimes, though, distinguishing an innocent accident from deliberate malice can be extremely difficult.
The task will fall in the first instance on U.S. Mag. Judge Arthur J. Boylan (D. Minn.) to determine whether Michael Brodkorb’s lawyers’ public disclosure of confidential information was “intentionally accidental” or “merely accidental.” (For an earlier post on this debacular Brodkorbian spectacle or spectacular Brodkorbesque debacle, see here.)
For the Minnesota Senate’s “bill of particulars” setting out their case for the idea that Brodkorb’s lawyers knew exactly what they were doing when they published the names of legislators’ alleged marital infidelities, see the bullet points linked brief at pp. 6-11.
This might get interesting when we see the Brodkorb lawyers’ response.
The improperly public filing of confidential information occurred around 4:00 p.m. on July 3, 2013. The filing attorney is identified by the on the court’s electronic filing system as Philip Villaume. Villaume and his firm withdrew as counsel for Brodkorb in this case on August 1.
These facts raise all kinds of issues.
First, don’t you love rushing to get work out the door in the late afternoon before a holiday break and the resulting surprises awaiting you on your return to work (or, better yet, the furious nearly immediate call of opposing counsel as you’re heading out the door)? (I speculate here, of course.) (Personally, I prefer my pyrotechnics at a safer distance.)
Second, very few lawyers, particularly of Mr. Villaume’s vintage (he was first admitted to practice in 1979) do their own electronic case filings. While lawyers cannot avoid responsibility for mistakes by blaming support staff, the failure to file correctly is more easily understood as innocent rather than intentional if it might be seen as an internal communication failure or done by inexperienced support staff. On the flip-side, if the filing was “intentionally accidental,” it would presumably be more difficult to conceal if there were several different people involved (a.k.a., co-conspirators).
And how is new Brodkorb counsel supposed to defend against a claim that former counsel of record did something or failed to do something intentionally and not accidentally? What evidence can any of the parties or their current lawyers or the court itself get from former counsel and how?
(Enter, stage left, Edward Kautzer, whose practice appears to be many years of giving legal counsel to legal counsel…)