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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER III
MARCH 2019
www.mnbar.org
No, You Can’t
Call Him an
ABA Formal
Opinion No. 483,
data breaches,
and you
Substantial
completion
and liquidated
damages
on Facebook An interview
with Justice
Paul Thissen of
the Minnesota
Counseling clients Supreme Court
about social media The Music
and divorce Modernization
Act, explained
TELL YOUR
STORY.
FIND
CLIENTS.
Each month, over 25,000 searches
are made by individuals looking
for a lawyer.
Complete your MSBA profile so colleagues
and prospective clients can find you when
they need you.
Our directories are free, members-only resources:
• Our exclusive Colleague Directory connects you with
peers for referrals and other opportunities.
• Our public-facing directory, mnfindalawyer.com,
connects you to clients.
Help us serve
you better.
Five minutes is all it takes. Visit: mnbar.org/edit-profile
OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER III
MARCH 2019
www.mnbar.org
3 MSBA in Action
Save the dates for these
Certification events!
12 ON THE COVER
NO, YOU CAN’T CALL HIM
Professional
4
Responsibility AN @?%#! ON FACEBOOK
Private discipline in 2018 Counseling clients about social media and divorce
By Susan Humiston By Tifanne Wolter
6 Law & Technology
Third-party vendors
and risk management
By Mark Lanterman 20
SUBSTANTIAL COMPLETION
AND LIQUIDATED DAMAGES
A road not taken
By Isak Hawkinson
8 New Lawyers 16
Welcome to the New Age: ABA FORMAL OPINION
The Music Modernization Act NO. 483, DATA BREACHES,
By Alexandria Mueller
AND YOU
By Kevin P. Hickey and Jeff Alluri
10 Colleague Corner
‘I find value in
helping people
who help others’
Meet Irene Kao
24
‘MY FIRST FEW MONTHS HAVE BEEN AMAZING’
32 Notes & Trends An interview with Justice Paul Thissen
Landmarks in the law By Jon Schmidt
42 People & Practice
Member announcements
45 Opportunity Market 28
Classified ads RBG AND MINNESOTA
U.S. Supreme Court Justice Ruth Bader Ginsburg’s
48 Books & Bytes notable opinions in Minnesota cases
New in legal publishing By Marshall H. Tanick and Cathy E. Gorlin
www.mnbar.org March 2019 s Bench&Bar of Minnesota 1
MSBAinAction
Save the dates
for these
Certification
events!
C
alling all MSBA Board Certified Legal Specialists: Make
plans now to attend our 2019 recognition seminar and
social, coming up on Thursday, April 25, at the Minneapolis
Woman’s Club (410 Oak Grove Street). Registration begins at
2:30 pm. Attend one or both CLE sessions. The first program is
from 3 to 4 p.m., and the second program is from 4 to 5 p.m. with
a social following at 5 p.m.
Another upcoming date to note: The next Civil Trial
Certification Exam will be on Saturday, April 13th from 8:30 am to MEET THE STAFF: MSBA Certification Director Sue Koplin joined us
3:30 pm. The examination, while rigorous, is intended to confirm in September 2018, succeeding longtime Director Jessica Thomas
the knowledge of civil trial law you have already attained during following her retirement. Sue comes to the MSBA from a diverse
your years of practice. The exam consists of fact patterns about Trial background. She has been a licensed Minnesota attorney for over
Practice, Evidence, and Ethics, followed by short answer questions. 22 years. After serving as a law clerk for Minnesota’s 10th Judicial
The exam is open book. Examinees may bring their Federal Rules District in Washington County, she went on to practice law for four
of Evidence, and either the ABA Model Code of Professional years at two small firms in Le Sueur and Edina. Later, Sue spent
Responsibility, Model Rules of Professional Conduct, or the MN several years as an attorney editor and author at Thomson Reuters,
Rules on Lawyers Professional Responsibility. both in-house and on a contract basis. She loves to travel, downhill
The deadline to apply for the Certified Civil Trial Specialist ski, play tennis and other sports, watch her teenage boys play
exam is March 15. For more information visit www.mnbar.org/certify sports in all seasons, and take her beloved black Lab for walks.
or contact Sue Koplin, director of legal certification, at
skoplin@mnbars.org or (612) 278-6318. s
Court denies MSBA petition Meet the Bar
on admission to the bar rolls on
O T
n February 14, the Minnesota Supreme Court issued an order denying, he MSBA, HCBA, and RCBA’s
without prejudice, the MSBA’s petition to amend the Rules for Admission popular Meet the Bar events
to the Bar (File No. ADM10-8008). The requested amendments would were held at the University of St.
have allowed law students to take the bar exam prior to completion of all course Thomas School of Law on February 12
work and graduation from law school, provided certain criteria were met. Reducing and at Mitchell Hamline on February 19.
the time between law school graduation and admission to practice would allow Sections and affinity bars were invited
new attorneys to move more quickly into the job market, enhancing their ability to to send representatives to speak with
repay student loans. students, and the MSBA provided free
The Court referred the petition to the director of the Board of Law Examiners professional headshots. The 131 students
to convene an ad hoc committee to evaluate whether to recommend a possible who attended were very appreciative of
pilot project, and if so, to create the rules and the criteria for evaluation that would the opportunity to talk with practitioners
apply. The MSBA will have two representatives on the ad hoc committee. The and obtain a complimentary headshot.
director’s report and recommendations are due by March 1, 2020. The MSBA A heartfelt thanks to the MSBA
wishes to thank Michael Boulette, Sarah Soucie Eyberg (who also chaired our Early members who took time out of their busy
Bar Exam Committee), and George Henry for drafting the petition. s schedules and braved the snowy weather
conditions to appear at these events. s
2 Bench&Bar of Minnesota s March 2019 www.mnbar.org
Official publication of the
Minnesota State Bar Association Getting fired unfairly is
www.mnbar.org | (800) 882-6722 devastating. I get it. Pursuing
justice for employees is the
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Editor and pragmatic, I’m determined
Steve Perry to get the best possible
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President
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Paul W. Godfrey
President-elect LET’S TAKE A STAND
Tom Nelson
Treasurer
Dyan J. Ebert Ross D. Stadheim, Partner
Employment Law
Secretary
Jennifer A. Thompson
Chief Executive Officer
Cheryl Dalby
Publications Committee 612.605.4098 HALUNENLAW.COM
Chairperson
Steven P. Aggergaard
Emily K. Cooper
Holly A. Fistler
June Hoidal
Bethany Hurd
Carol K. Lee
Henry D. Long
Malcolm P.W. Whynott
© 2019 Minnesota State Bar Association
Bench & Bar of Minnesota (ISSN 02761505) is published Monthly,
except Bi-Monthly May/June by the Minnesota State Bar
Association, 600 Nicollet Mall STE 380, Minneapolis, MN 55402-
1641. Periodicals postage paid at St Paul, MN and additional
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WE’D LIKE TO HEAR FROM YOU: To query potential articles for
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to the profession, the MSBA, or this magazine, write to editor
Steve Perry at sperry@mnbar.org or at the postal address above.
www.mnbar.org March 2019 s Bench&Bar of Minnesota 3
ProfessionalResponsibility | BY SUSAN HUMISTON
Private discipline in 2018
I
n 2018, 117 files were closed by the Office of Lawyers unless it falls within one of several specifically enumerated
Professional Responsibility (OLPR) with the issuance exceptions to the confidentiality rule.5 One of the exceptions
of an admonition, a form of private discipline reserved is to prove that services were rendered in an action to collect
for professional misconduct that is isolated and non- a fee.6 In sharing confidential information, it’s important to
serious.1 This number is up from private discipline in 2017 (90 bear in mind that you should only be sharing information
admonitions), but on par with 2016 and 2015. Additionally, 14 necessary to establish your claim. An attorney was recently
files were closed with private probation, the same number as in admonished when his response to LawPay went beyond proof
2017. Private probation, which must be approved by the board of services rendered, delving into confidential communications
chair, is generally appropriate for attorneys with more than one relating to the representation that had little to do with the
non-serious violation who may benefit from supervision. fee dispute. Specifically, the response to LawPay—and a third
This sampling of admonitions is offered to highlight issues party who had referred the client to the attorney—quoted and
that lead to private discipline. enclosed unredacted attorney-client communications relating
to the merits of the claim the attorney was handling. In the
The no-contact rule lawyer’s view, the information demonstrated the unrealistic
Rule 4.2 provides that: expectations of the client. LawPay, in contrast, was basically
looking for a copy of the signed fee agreement and proof of
In representing a client, a lawyer shall not communicate services rendered, such as invoices, which respondent did not
about the subject of the representation with a person the provide.
lawyer knows to be represented by another lawyer in the Lesson: Tread carefully when disclosing information relating
matter, unless the lawyer has the consent of the other to your representation to third parties, making sure there is an
lawyer or is authorized to do so by law or a court order.2 exception that will cover your disclosure—and only disclose the
information necessary to address the issue at hand.
Periodically, lawyers are disciplined for violating this rule. In
2018, the Minnesota Supreme Court affirmed an admonition Misuse of “evidence”
where an attorney communicated with a represented co- Rule 4.4(a) provides:
defendant immediately following one
party’s settlement of the case.3 The In representing a client, a lawyer shall not use means
Court’s opinion is illuminating because that have no substantial purpose other than to
it walks through the elements of the embarrass, delay, or burden a third person, or use
rule violation (ongoing representation, methods of obtaining evidence that violate the legal
merits of the matter, and knowledge of rights of such a person.7
representation), and rejects respondent’s
attempts to narrowly interpret the rule. In a harassment restraining order proceeding, an attorney
The case also illustrates the extensive met with the opposing pro se party and advised the party that
SUSAN HUMISTON remedies available in Minnesota the lawyer intended to admit into evidence at the upcoming
is the director of the to respondents subject to private hearing a police report involving the pro se party’s boyfriend
Office of Lawyers discipline—the right to appeal to a (who was not the subject of the HRO). The report disclosed
Professional Respon- panel of the Lawyers Board and to the confidential medical information about the boyfriend unrelated
sibility and Client Minnesota Supreme Court itself—and to any issue in dispute in the HRO proceeding. The pro se
Securities Board. it reminds us that technical violations party agreed to dismiss her HRO because she did not want the
She has more than of the rule are still rule violations medical information, which was embarrassing, to be part of the
20 years of litigation warranting discipline. court record.
experience, as well Lesson: Always clarify with counsel— During the ethics investigation, the attorney was unable
as a strong ethics not the represented party—the scope of to present credible arguments as to why the information was
and compliance the representation so you do not violate potentially admissible or relevant, leading to the conclusion
background. Prior the no-contact rule. that its use in negotiations had no substantial purpose other
to her appointment, than to embarrass the pro se party sufficient to prompt the
Susan worked in- Confidentiality dismissal of the HRO. This matter also presented a close
house at a publicly All information relating to your question as to whether the rule violation was isolated and
traded company, and representation of a client is confidential non-serious, given that the attorney’s action led directly to the
in private practice as under the ethics rules.4 Because it is dismissal of a pending proceeding.
a litigation attorney. confidential, information relating to the Lesson: Make sure you have a meritorious, good faith basis
representation should not be disclosed for the means you are using to accomplish your client’s goals.
4 Bench&Bar of Minnesota s March 2019 www.mnbar.org
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Conclusion
Private discipline is just that—private.8 t e r n t (651) h i d e n
A Fax: n e r s • email@pjtagency.com
s(612)m349-3657 r
t i u a R e • www.pjtagency.com ei em
With few exceptions, unless an attorney
o h o e r e c d
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most attorneys who receive admonitions
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issues. However, if an attorney
At ardi ari
engages in further misconduct, prior
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private discipline may be relevant in
determining the appropriate level of Gu rtio
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discipline for subsequent conduct, and
may be disclosed if future actions result
in public proceedings.9 s
Notes
1
Rule 8(d)(2), Rules of Lawyers Professional 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173
Responsibility (RLPR). Telephone: 800-844-6778 FAX: 800-946-6990
2
Rule 4.2, Minnesota Rules of Professional
www.landexresearch.com
Conduct (MRPC).
3
In re Charges of Unprofessional Conduct in
SOCIAL SECURITY DISABILITY
Panel File No. 41755, 912 N.W.2d 224 (Minn.
2018).
Rule 1.6(a), MRPC, provides “a lawyer shall
InITIAL AppLICATIOn ThROUgh hEARIng
4
not knowingly reveal information relating to
the representation of a client.”
5
Rule 1.6(b), MRPC, lists 11 exceptions
authorizing disclosure of confidential
information.
6
Rule 1.6(b)(8), MRPC, comment [9].
7
Rule 4.4(a), MRPC.
8
Rule 20(a), RLPR. Note, Rule 20 addresses
in detail the circumstances under which the
OLPR may disclose information to third 612-825-7777 | www.livgard.com
parties and others involved in the lawyer paul Successfully pursuing benefits since 1993
regulation system. Livgard
9
Rule 19(b)(4), RLPR.
www.mnbar.org March 2019 s Bench&Bar of Minnesota 5
Law&Technology | BY MARK LANTERMAN
Third-party vendors and risk
management
I
t’s always scary to think that third-party risk. All third-party vendor now an element of its risk profile. If that
sometimes data breaches aren’t the relationships come with a degree of vendor is vulnerable, so are you. If that
result of “hacking” so much as user risk, regardless of the service they are vendor has a weak security posture, so
error. Rubrik, a security and cloud providing. In the massive Target data do you, no matter how stringent your
management firm, recently learned this breach of 2013, it was a third-party that internal policies are. In addition to the
the hard way, when a misconfigured compromised Target’s data, affecting reputational, financial, and operational
server exposed data belonging to major millions of its customers. Keep in mind risks that may be incurred from a third-
clients.1 As organizations use increas- that this third party provided HVAC party security incident, legal risks must
ingly complex technology to handle and refrigeration services.2 It goes to also be taken into account—especially
increasingly vast amounts of client data, show that regardless of the company, in light of HIPAA and GDPR regula-
it is becoming more and more difficult to third-party involvement always comes tions. Transparency about reporting
keep up with security demands. with dangers and requires continuing data breaches is critical when it comes
As Rubrik was recently reminded, se- oversight past the initial stages of the to working with third-party vendors;
curity demands include proper configura- agreement. Cyber risk management immediate notification of cyber events
tion and hardware setup as well as more calls for separate ownership of different should be a stipulation of any agreement.
advanced security measures of the sort levels of risk, including third-party Contractual considerations should in-
I have mentioned in previous articles. relationships. clude access requirements, reputation of
Many organizations overlook the fact Once a responsible person or group the third party, liability, audit procedures,
that third-party vendors can cause just as is designated for the management and and termination of access to data when
much damage in the event of a breach as overview of third-party relationships, the agreement is cancelled or expires.
an internal cybersecurity event. Repu- one key task is to keep track of where It is impossible to ensure perfect
tationally, operationally, and financially, organizational data resides. Record security, but organizations can take
where the breach originated doesn’t mat- where the data is being stored, what measures to mitigate the risks associated
ter as much as who the breach is going to type of data it is (especially if it’s highly with advanced technology systems and
impact most. If the answer is an organi- confidential or protected), and how the growing volumes of data. Whether it’s
zation’s major clients, I am willing to bet data is being protected by each vendor. ensuring proper configuration of systems
those clients won’t care either. Try to limit which vendors have access to or controlling access, third-party vendor
sensitive data and incorporate ongoing agreements introduce another element
Managing reviews and audits as part of continued of risk to your organization that may be
third parties due diligence. Prior to entering into any difficult to fully account for or control.
Most new agreements, thoroughly research the Considering each level of risk, includ-
organizations prospective party’s stance on cybersecu- ing legal obligations, and promoting
have some degree rity issues and how they have handled regular audits under the supervision of a
of third-party any past incidents. What controls are single responsible individual within the
involvement in used for sensitive data and who has organization can assist in identifying and
managing internal access to systems? Do they audit their mitigating the risks associated with third-
systems and cloud third-party subcontractors? Do they have party involvement. That also includes
MARK LANTERMAN services, or in an incident response plan? Is it readily trying to ensure that the third party
is CTO of Computer helping conduct available for review? Does it comply with has the same dedication to developing
Forensic Services. some operational the standards of the internal response cultures of security that your organiza-
A former member function. When plan in place? Asking the right questions tion does. s
of the U.S. Secret entering into can help determine whether the value of
Service Electronic agreements for a third-party agreement is worth the risk Notes
Crimes Taskforce, these services, from the outset. 1
Kelly Sheridan, “Rubrik data leak is another
Mark has 28 years it’s advisable to cloud misconfiguration horror story,” Dark
of security/forensic have a designated Assessing risk Reading (1/30/2019). https://www.darkreading.
experience and person who is Service-level agreements should be com/cloud/rubrik-data-leak-is-another-cloud-
has testified in over responsible for created in compliance with the same misconfiguration-horror-story/d/d-id/1333767
2,000 trials. He is a overseeing the security protocols and policies that 2
Brian Krebs, “Target hackers broke in
member of the MN agreement process regulate internal operations. When an via HVAC company,” Krebs on Secu-
Lawyers Professional and guiding the organization trusts an outside source rity (2/14/2014). https://krebsonsecurity.
Responsibility Board. management with its data or allows it access to the com/2014/02/target-hackers-broke-in-via-hvac-
and review of organization’s networks, that source is company/
6 Bench&Bar of Minnesota s March 2019 www.mnbar.org
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NewLawyers | BY ALEXANDRIA MUELLER
Welcome to the New Age:
The Music Modernization Act
T
he federal Music Modernization
Act signed into law in late 2018
is the first major update to music
copyright law in decades. It heralds a
new era in which rights management and
royalty collections will be streamlined,
and creators will be better compensated
for their music.
Introduced in the U.S. House of
Representatives in December 2017 by
Reps. Doug Collins (R-GA) and Hakeem
Jeffries (D-NY), H.R. 4706 became
known as the Music Modernization Act
of 2017.1 The bill underwent months of
analysis and revisions, taking input from
music publishers, composers, record la-
bels, digital music providers, performing
rights organizations, rights administra-
tors, and trade associations.
What emerged was omnibus bill H.R.
1551, known as the Orrin G. Hatch-Bob
Goodlatte Music Modernization Act
(MMA).2 The act combined the De-
cember 2017 legislation—retroactively often owned by different parties than the Complicating matters still further is
named the Musical Works Moderniza- rights for the underlying composition, the classification of a digital music provid-
tion Act3—with the Classics Protection and the existing copyright laws often er as interactive or non-interactive.14 In
and Access Act4 and the Allocation for placed sound recording owners at a addition to paying performance royalties,
Music Producers Act.5 The resulting disadvantage when it came to collecting interactive streaming services such as
bill—lauded for its extensive bipartisan royalties. Spotify are required to obtain mechani-
support as well as an unprecedented lev- Public performance royalties are cal licenses, which is the same license
el of cooperation amongst music industry generated whenever music is performed required to distribute music in a physical
participants—was live or is broadcast, such as on television format or for a download. Mechanical
signed into law or terrestrial7 radio. Performance licenses historically have been cleared on
on October 11, royalties are collected on behalf of a song-by-song basis, and the system for
2018.6 composers and publishers by performing obtaining them is simply not capable of
The MMA’s rights organizations (PRO).8 A PRO handling the volume of licenses required
primary aim is issues licenses to broadcasting entities, for digital music providers. To make
to update the typically using a blanket license9 that matters worse, there is not a central-
framework that grants permission to use any of the music ized database that lists owners of sound
governs sound in the PRO’s catalog for a set fee.10 recordings, so the digital music providers
recording licenses cannot easily determine who to contact
ALEXANDRIA and royalties. Digital age challenges or pay for many recordings and have
MUELLER For purposes of Under the 1976 Copyright Act, there resorted to filing millions of notices of
graduated cum music copyright, are no performance royalties for the use intent (NOI) with the Copyright Office.15
laude from Mitchell there are two of the sound recording, only for the use Under the NOI process, copyright owners
Hamline School incarnations of the composition.11 This means that cannot retroactively collect royalties if
of Law in 2016 of the works while the songwriters and publishers they are later identified, leading to the so-
and practices involved: receive royalties for broadcasts, record- called royalty “black-box,” and millions of
entertainment law in the recorded ing artists and record labels do not.12 dollars unpaid to rights holders.16
Minneapolis. She is music and the Enter the internet. In 1995, Congress
currently vice-chair underlying created a digital performance right for The new regime
of the Sports, Art composition that sound recordings, and since then, sound The MMA addresses these problems
& Entertainment is embodied in recording owners and recording artists in several ways. First, it establishes
Law Section of the the recording. have been entitled to performance royal- a new administrative organization
MSBA. The rights for ties for sound recordings transmitted for mechanical licenses, called the
the recording are over the internet.13 Mechanical Licensing Collective (MLC).
8 Bench&Bar of Minnesota s March 2019 www.mnbar.orgThe MLC will allow digital music The MMA is a significant step in ad- public-performance-right-sound-recordings. The
providers to obtain blanket licenses, dressing several issues faced by the music U.S. is an outlier in this regard—most other
which will cover permanent downloads, industry. The Register of Copyrights is countries do pay royalties for performance of
limited downloads, and interactive currently in the process of designating the sound recording. Id.
streams. The MLC will also create and the MLC.22 On February 4, 2019, the 13
In 1995, Congress passed the Digital Perfor-
maintain a publicly accessible database National Music Publishers Association mance Right in Sound Recordings Act which
of sound recordings and musical works (NMPA), Nashville Songwriters As- added a performing right for sound recordings
that includes their owners and respective sociation International (NSAI), and the in §106, entitling recording artists to royalties
ownership shares. In addition to Songwriters of North America (SONA) for the performance of a sound recording if it
benefiting the digital music providers, submitted their MLC proposal, the is transmitted over the internet, and doesn’t
this centralized information will expedite second proposal submitted for consider- fall into one of the exemptions in §114.
all mechanical licensing in the U.S. ation.23 The first proposal was submitted 14
Interactive (user-selected) streams are
Once the blanket license becomes by the American Mechanical License sometimes referred to as on-demand streams.
available, the Copyright Office will no Collective (AMLC).24 The Register of U.S.C. §114(j)(7). Noninteractive streams
longer accept notices of intent from Copyright is accepting proposals until “are very generally defined as those in which
digital music providers. In the case of March 21, 201925 and is expected to des- the user experience mimics a radio broadcast.
works whose owner cannot be identified, ignate the MLC later this year,26 meaning That is, the users may not choose the specific
the MLC will hold royalties in escrow the database construction could com- track or artist they wish to hear….” Licensing
for three years, after which it will simply mence shortly thereafter. Blanket licenses 101, SoundExhange.com, https://www.sound-
disburse the funds to copyright owners should become available in 2021. s exchange.com/service-provider/licensing-101/ .
based on market share. Like the licenses 15
Rep. Doug Collins (R-GA), The Music Mod-
issued by the PROs, the MLC rates will Notes ernization Act Will Provide a Needed Update
be determined by the Copyright Royalty 1
S ee H.R. 4706, Congress.gov, https://www. to Copyright Laws, The Hill (1/10/2018),
Board,17 but the MMA makes some congress.gov/bill/115th-congress/house-bill/4706/ http://thehill.com/blogs/congress-blog/
changes to the process, including a rota- text. technology/368385-the-music-modernization-
tion of the judges for rate court proceed- 2
See H.R. 1551, Congress.gov, https://www. act-will-provide-a-needed-update-to. See 17
ings, and establishing a willing buyer/ congress.gov/bill/115th-congress/house-bill/1551/ U.S.C §115(b).
willing seller standard. titles 16
Id.
3
(H.R. 4706/S.2334). 17
This applies to ASCAP and BMI, which
Pre-1972 recordings 4
(H.R. 3301/S.2393). operate under consent decrees.
and royalty splits 5
(H.R. 881/S.2625). 18
See A Study on the Desirability and Means
The second part of the MMA (The 6
(Public Law No: 115-264). for Bringing Sound Recordings Fixed Before
Classics Protection and Access Act) con- 7
Terrestrial radio is also referred to as ‘tradi- February 15, 1972, Under Federal Jurisdiction,
cerns pre-1972 sound recordings. Sound tional’ radio, meaning radio transmitted via Copyright.gov https://www.copyright.gov/docs/
recordings were not given copyright pro- radio broadcasting towers, as opposed to sound/pre-72-report.pdf.
tection until 1972, meaning any record- internet or satellite radio. 19
Public Law No: 115-264 §202. This section
ing made before February 15, 1972 falls 8
In the U.S. the PROs are the American pre-empts existing state and common law
outside of federal copyright laws.18 This Society of Composers, Authors and Publishers claims. Id.
created a problem for sound recording (ASCAP), Broadcast Music Inc. (BMI) and 20
Public Law No: 115-264 §302.
owners in attempting to prevent others SESAC, Inc. 21
Id.
from using or duplicating the recordings, 9
A blanket license is “a non-exclusive license 22
See Request for Information on Designation of
and a patchwork of state laws emerged that authorizes a music user to perform Mechanical Licensing Collective and Digital
to try to address the problem. The MMA ASCAP [or BMI] music, the fee for which Licensee Coordinator, FederalRegister.
ensures that legacy artists are compen- does not vary depending on the extent gov https://www.federalregister.gov/docu-
sated for pre-1972 sound recordings used to which the music user in fact performs ments/2018/12/21/2018-27743/request-for-
in non-interactive digital transmissions, ASCAP [or BMI] music.” Consent Decree, information-on-designation-of-mechanical-
and grants remedies to sound recording U.S. v. ASCAP, 2001 WL 1589999 (S.D.N.Y. licensing-collective-and-digital-licensee.
owners under federal law.19 6/11/2001). 23
See The NMPA Submits Their Mechanical
Finally, the MMA’s third section (the 10
Composers can only belong to one PRO, so Licensing Committee (MLC) Proposal — And
Allocation for Music Producers Act) many broadcasters obtain blanket licenses Calls for a No-Bid Contract, Digitalmusic-
codifies an existing practice of compen- from both ASCAP and BMI in order to have news.com, https://www.digitalmusicnews.
sating music producers out of a portion a wider selection of music available to them. com/2019/02/04/nmpa-mechanical-licensing-
of an artist’s royalties. Artists who have 11
See 17. U.S.C. §114(d). committee-mlc-mma/ .
agreed to royalty splits with their produc- 12
“This arrangement is the result of a long- 24
Id. See also Lobbying for Spots on the Music
ers will provide SoundExchange (the standing argument made by terrestrial broad- Modernization Act’s Licensing Collective Heats
entity responsible for collecting and dis- casters that performers and labels benefit Up, Billboard.com, https://www.billboard.com/
tributing digital performance royalties for from the free promotion received through articles/business/8491190/lobbying-spots-music-
sound recordings) with a letter of direc- radio play. Broadcasters contend that airplay modernization-act-licensing-collective-heats-up.
tion that enables SoundExchange to pay increases album sales, which leads to compen- 25
See Request for Information on Designation of
the producer directly.20 In the absence of sation for performers and record labels. As a Mechanical Licensing Collective and Digital
a letter of direction, SoundExchange will result, broadcasters have, for decades, con- Licensee Coordinator, FederalRegister.
automatically deduct 2 percent of royal- vinced Congress that they should be exempt gov https://www.federalregister.gov/docu-
ties for any sound recording fixed before from paying the public performance royalty ments/2018/12/21/2018-27743/request-for-
November 1, 1995 and allocate these for sound recordings.” Public Performance information-on-designation-of-mechanical-
funds to producers involved in making Right for Sound Recordings, FutureOfMusic. licensing-collective-and-digital-licensee.
that recording.21 org, https://futureofmusic.org/article/fact-sheet/ 26
Public Law No: 115-264 §102.
www.mnbar.org March 2019 s Bench&Bar of Minnesota 9ColleagueCorner | MEET IRENE KAO
Why did you go to law school?
As a high school student and the first in my family to go to
college, I said I wanted to go to law school. At that time, I said it
because I was involved in mock trial and speech, but I didn’t really
know why I wanted to go to law school. In college, I changed my
mind and ended up going to graduate school and working at colleges
and universities. It was great working to help students at an individ-
ual level, but I didn’t feel like I was able to help at a larger organiza-
tional or societal level. So I went to law school.
Tell us a little about your job with the League of Minnesota Cities,
and what you find appealing about government relations work.
The League of Minnesota Cities, as a membership organization,
provides education, risk management, and advocacy for all cities
throughout every corner of the state. I work with small cities—such
as Funkley, population 10—to our largest members of Minneapolis
and St. Paul. No matter the size or where they are located in Minne-
sota, I have learned that cities want to serve their communities the
best they can.
When people think of lobbyists, they may think of political fun-
draisers and favor-swapping. One of the many things I enjoy about
lobbying for the League is that we don’t have a PAC. It isn’t money
that we rely on; instead, our political capital is in the expertise of
our members. City officials, elected and appointed, are intimately
familiar with their local communities. It’s my job to help legislators
understand how their bills impact the local communities in their
districts.
What’s the best advice you ever received?
“Say what you mean and mean what you say.” I first heard this
piece of wisdom when I was a teenager. It means even more now,
given my line of work. I want cities to be the best they can be. That
means when cities want to serve their residents and communities in
better way, I attempt to smooth the way through new laws and advo-
cacy at the state capitol. But it also means that if cities do something
‘I find value
wrong or need to change, I need to acknowledge that as well.
Reputation and credibility are cornerstones of being an effective
lobbyist and lawyer. Heeding these wise words from my teenage years
helps me be steadfast with these cornerstones.
in helping You have been a devoted volunteer at bar groups like the MSBA and
the Minnesota Asian Pacific American Bar Association. What have
people
you found most valuable about your involvement in bar groups?
Helping where I can. We are fortunate to be lawyers. The law
affords us a lot of knowledge, and therefore power. We use that
knowledge and power to help our clients and society on a daily basis.
who help
But how do we help one another?
Be it providing a different perspective when I served on the
MSBA Council, facilitating comprehensive board policy review with
MN CLE in service as board chair, or helping diverse candidates
others’ with the judicial appointment process through the Minnesota Asian
Pacific American Bar Association or the Infinity Project, I find value
in helping people who help others every day.
It’s a bonus that I get to meet great people along the way, some of
IRENE KAO is the intergovernmental relations counsel whom have become my closest friends.
at the League of Minnesota Cities, where she advocates
on behalf of cities at the state Legislature and serves as How do you like to spend your time when you’re not working?
legal counsel for the lobbying department. The League of Outside of work, my bar activities, and being a supportive parent,
Minnesota Cities is a membership organization serving I like to unwind by watching great television series, such as Killing
over 830 cities through advocacy, education, and risk Eve, Sherlock, and Luther. These shows are a good reminder that you
management. For more information, see www.lmc.org. don’t have to be perfect to be great at what you do. Being flawed is
IKAO@LMC.ORG what makes the main characters so endearing. s
10 Bench&Bar of Minnesota s March 2019 www.mnbar.orgONE
Profession
One Profession. Minnesota
State Bar
One Day. Association
Coming Your Way. Upcoming
One Profession
Events
The MSBA’s One Profession events bring together judges
MARCH 22
and lawyers for one day each year to discuss the issues 9th Judicial District, Bemidji
and opportunities facing the legal profession around
Minnesota. These programs are open to all lawyers— MARCH 28
5th Judicial District, Mankato
MSBA members and non-members alike.
APRIL 26
Join your colleagues for presentations, panel discussions, 3rd Judicial District, Rochester
and conversations with attorney thought leaders. Each
One Profession event is unique—tailored to reflect the MAY 17
7th Judicial District, Long Prairie
interests and concerns of its regional constituents.
JULY 11
10th Judicial District, Coon Rapids
OCTOBER 25
1st Judicial District, (tbd)
CLE credits are available.
For more information visit:
www.mnbar.org/one-profession
“Facing our profession’s toughest
challenges takes all of us, no matter what
part of Minnesota you call home.”
– Chief Justice Lorie Gildea, MN Supreme CourtNo, You Can’t
Call Him an
on Facebook
Counseling clients about
social media and divorce
By Tifanne Wolter
12 Bench&Bar of Minnesota s March 2019 www.mnbar.orgD
ivorce is one of the most stress- consultation is often highly emotional and It’s also important to learn whether the
ful and painful experiences a sometimes the client is overwhelmed with client’s children are on social media, and
person can undergo. And in information just about divorce laws and if necessary take steps to prevent their ex-
the age of social media, where the process itself. Once retained, however, posure to this kind of content. Back in the
people often feel compelled to broadcast I will schedule a time where we discuss days when MySpace was popular, I had an
every little detail about their lives to the social media, communication by email opposing party who liked to write erotica.
whole planet, the experience can become and text message, and access to online ac- She had a pseudonym with a MySpace
even more fraught. There is significant counts. It may even be helpful to create a profile. But the parties’ children, who
risk to clients who choose social media as handout or post a blog entry on your web- ranged in age from eight to 14, were
the avenue to convey their feelings and site to which you can refer clients. “friends” with the account she created
document their actions in this difficult under her pseudonym (along with a lot of
time. While it is human to want to share First things first other creepy people). We were able to use
your pain and anger, social media records Social media can be a great way to this as evidence in our custody case.
can find their way into court pleadings connect with people—but in a divorce, it By its nature, social media creates a
and proceedings. Judicial officers will be is one of the most common traps a client sort of cocoon that makes it easy for a
displeased to read posts that criticize, de- can fall into. Drunken vacation photos, client to believe all of his or her friends
mean, or otherwise case a negative light memes about parents who just want to are loyal, caring individuals. This is a
on the other party. keep the kids for child support (or other myth. I talk with clients about asking
A person’s social media footprint looms memes that point blame at ex-spouses), their friends never to publish compromis-
so large as a potential factor in divorce and tweets generally badmouthing people ing pictures or posts involving the client.
that, prior to meeting with a client, I’ll of- related to the divorce are not helpful in More importantly, clients must under-
ten do an assessment of her social media the divorce process. Opposing counsel stand the importance of managing their
presence. I’m looking for existing issues, and judicial officers will see this commu- own online behavior and hewing to best
but also to get a handle on personality nication adversely. practices during the divorce proceedings.
and temperament. I much prefer to have
a sense of what I can expect and to deter-
mine whether coaching will be needed on
any issues. Social media is often an outlet
for clients to keep in communication with
supportive friends or family. But posts that
may seem harmless or newsworthy to the
client may prove to be unpleasant or dam-
aging in the eyes of others. If I had a nickel
for every time I had to say, “No, Janice,
you can’t call him a SOB on Facebook,”
chances are I’d have a nice place in the
Caribbean by now.
Unless I see a significant problem, the
initial consultation isn’t typically the place
to talk about social media or the related
problem of disentangling a couple’s digital
resources. As a divorce attorney, I may be
the first person with whom a client has
even talked about a divorce. An initial
www.mnbar.org March 2019 s Bench&Bar of Minnesota 13If they can’t, then I advise them to tion from text messages that she had sent
stop using social media entirely—cold to close friends and family members. It
turkey. It’s the only way to guarantee turned out that her Apple account was
that no new damaging information from linked to her daughter’s iPad, and her
those outlets will ever end up in front of
DO NOT EVER ADVISE husband read all of her text messages
a judicial officer. A client can deactivate YOUR CLIENT TO when the daughter brought the iPad to
their profiles for a period of time. When his house during parenting time. Another
cases are extremely contentious and you DELETE POSTS. client’s teenage daughter found out her
have a client whose posts are continuing mother was having an affair in a similar
to ratchet up the conflict, this may be the DELETING A POST way. The daughter was using her mother’s
best practice. Mac Book while her mother was texting
IS SPOLIATION OF with her paramour on her iPhone, and
Stop sharing digital accounts the daughter read all of the text messages
Couples frequently share digital ac- EVIDENCE. INSTEAD, being sent back and forth while she was
counts. One of the first things I advise using the computer to do her homework.
is to change all passwords—this means THEY CAN CHANGE Often, clients may want to move on
every account, including social media, to their next relationship while the pro-
email, patient health records, credit THE PRIVACY ceedings are ongoing, and will turn to
cards, and financial accounts in the cli- online dating to meet new people. Dat-
ent’s own name. It seems like an obvi- SETTINGS SO THAT ing profiles will often contain information
ous task, but at a time when the client that paints the client or opposing party in
is overwhelmed and stressed, it often gets THE POST IS ONLY a very good light, true or not. This pro-
forgotten or delayed. This simple action file data is public. If a party embellishes
can prevent a lot of trouble down the VISIBLE TO THEM. their profile to indicate they are wealthy,
road. I always advise clients to make the childless, or the owner of multiple homes
change significant, not just one letter or or properties, problems will certainly
number. Do not pick a password that has arise. For instance, while your client may
personal significance that a spouse could want potential dates to believe he makes
guess, such as a child’s birthdate or a pet’s $750,000/year, if his pleadings state he’s
name. Also, it is not wise to write it down Sometimes a divorcing couple still self-employed and doesn’t make any
somewhere that the spouse could find it. shares a residence. This may mean that money, this will be problematic.
If your client needs help remembering they share a computer or other electronic I generally advise clients to watch
passwords, suggest downloading a pass- device. I advise clients to delete all saved everything that they do on the internet.
word keeper app for their phone. Reading passwords. Saving passwords for websites Even their Craigslist postings or eBay
someone else’s email without permission saves time, but they can also be used by transactions may prove significant. The
is a crime under the Electronic Commu- an unscrupulous spouse to gain access to last thing you want to see is your client
nications Privacy Act (18 U.S.C. §2510). accounts and information. And clients selling all of the parties’ personal property
I once had a situation where a client must also keep in mind that there are on the Facebook Garage Sale Group. I
had followed my advice and changed his many ways passwords may be saved. The recently had a case in which my client’s
email password, but because he had only individual website may save the password, former neighbors called him to let him
changed one number in the password, his but the web browser might also save the know there was a lot of traffic coming
wife was able to access his email account. password. Instruct your client to review and going from the house. He discovered
She read every email that he and I had the browser settings and delete the pass- his wife had posted a liquidation sale on
exchanged, and even forwarded a few to words saved there. Next have them de- Craigslist. She was selling everything.
herself. My client reported the illegal ac- lete their “cookies” in order to remove GoFundMe or other fundraising web-
cess to his local police department but was the passwords saved on the individual sites are another great resource for mining
dismissed as a disgruntled soon-to-be-ex- websites. information. If one of the parties starts up
spouse. Getting a police department to a GoFundMe campaign to raise money
investigate and a prosecutor to charge the More do’s and don’ts for legal fees and posts it all over Face-
crime is difficult. Knowing this, it’s im- Accounts and information may be book, someone is going to see it and share
portant for clients to take changing pass- shared across several devices. Apple it with the opposing party. A party that
words seriously to protect their private products users need to pay special atten- starts up a GoFundMe campaign usually
information and communications with tion to this. For example, text messages has a story to go along with their request
their attorney. Clients might consider cre- and emails sent from an iPhone may show for money—often embellished in order to
ating an entirely new email address that up on an iPad or a Mac computer. elicit sympathy—and those statements
their spouse does not know about, just for I once had a client who could not fig- can be used against them.
attorney-client communications. ure out how her spouse knew informa-
14 Bench&Bar of Minnesota s March 2019 www.mnbar.orgSocial media and discovery
I
f you discover that the opposing party in a case has posted something
improper on social media, you will need to obtain a copy of that post in
a manner that is authenticated and admissible. You can do this in one
Limiting any damage of three ways. First, you can get the information by obtaining the consent
Despite all of your warnings, divorce of the opposing party (a release of information). Second, you can subpoena
is painful and messy. Emotions run high, the provider. Finally, you can request that the opposing party produce the
and clients will make missteps. When data.
that happens, the most damaging thing If you are able to get a release of information from the opposing party,
your client can do is try to cover it up or this might be the best way to obtain the evidence. Most attorneys would
hide it. Do not ever advise your client to probably think that subpoenaing the information directly from the pro-
delete posts. Deleting a post is spoliation vider is the best practice. It’s not. For example, Facebook, the largest social
of evidence. Instead, they can change the media provider, takes the position that the Stored Communications Act
privacy settings so that the post is only (18 U.S.C. § 2701) protects them from having to provide access to specific
visible to them. information or posts based on a civil subpoena. They will respond only to
Whatever emerges from social me- federal or California subpoenas. If the subpoena comes from another state,
dia or other internet sources, your client the subpoena needs to be domesticated by a California court.
needs to take responsibility for the issue Even then, Facebook will only provide what is called a “neoprint” of
and explain why the action was taken. If the user’s basic information. Facebook will also charge a processing fee for
your client sends their spouse inflamma- the subpoena. The amount they charge changes from time to time, and
tory text messages or emails, for example, at one time was as much as $500. And you will likely have to work with a
advise your client to immediately stop the California attorney to have your subpoena domesticated in California. It’s
behavior. The client should apologize for extremely costly and it’s unlikely to give you the information you need.
the communications and then simply quit The better practice is to send a Request for Production to the opposing
the offending behavior. If they own up to side requesting that the opposing party “download their Facebook informa-
it and the behavior stops, those offensive tion.” To do this, instruct the opposing party to go to www.facebook.com/
communications could become a blip on settings and click on “your Facebook information.” Next, they will click on
the radar at trial. In other words, bury the “view” under the category “Download Your Information.” Facebook will
bad communication in a stack of good allow the user to create an html file that will download posts, photos and
communication. videos, comments, likes and reactions, friends, following and followers,
One slip-up is unlikely to be the death messages, groups, events, profile information, pages, marketplace activity,
of your case. We can all certainly under- payment history, saved items and collections, your places, apps and web-
stand that people get frustrated and some- sites, and other activity.
times reach their breaking point. Some- You will need to instruct the opposing party on the date range that
times when that happens they act out you want information from, and all of the categories of information you
in a manner that they should not—and want them to select along with the quality and format of the information.
usually would not. If counterproductive For example, you might send a request that requires the opposing party to
behavior becomes habitual, though, your download their Facebook information from January 1, 2018 to February
client will have a significant problem. 20, 2018 in the categories of posts, photos and videos, comments, likes,
Ultimately, the best advice we can give and reactions in a high quality html file. Facebook will then create the
our clients in a digital world is to imagine html file with the requested information. That file can then be saved by
their judicial officer is sitting over their the user and provided to you. If you have a Facebook account, I recom-
shoulder, watching every post, email, and mend that you consider doing a download of your own data to see how the
communication. It’s difficult for clients to process works.
turn off the emotions that come with the If you have already obtained the post that you want to authenticate
most stressful events of their lives—but through your own Facebook sleuthing, or you have obtained it through
as counsel, we can help them understand your client or your client’s friend, you can authenticate the post through
how significant it can be when they make a Request for Admissions. Requests for Admissions are permitted under
mistakes, and help them navigate the dig- Minn. R. Civ. Pro 36.01 to verify the genuineness of any documents de-
ital world as safely as possible. s scribed in the request. A copy of the document must be served with the
request. The opposing party then has 30 days to respond to the Request for
Admissions, in writing, or the requests are deemed to be admitted. A party
TIFANNE E. E. WOLTER is must be truthful in their answers to the Request for Admissions; if they are
an associate at Henningson not, the court has the authority to deem the matter admitted or require
& Snoxell, Ltd in Maple that an amended answer be served.
Grove. She has concentrated If you know social media evidence is going to be important in your case,
her practice in family law for make sure that you plan your discovery strategy early. Obtaining the social
the past 16 years. Tifanne is media evidence directly from the opposing side is usually going to be the
active in the MSBA’s Family best way to authenticate it. If you need to engage in formal discovery, make
Law Section and currently sure to leave enough time to allow the opposing side to respond. s
serves as the vice-chairperson.
TWOLTER@HENNSNOXLAW.COM
www.mnbar.org March 2019 s Bench&Bar of Minnesota 15You can also read
