LAWYERS, INTERRUPTED Learning to practice in a pandemic - Minnesota State Bar Association
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER V
MAY/JUNE 2020
www.mnbar.org
LAWYERS, INTERRUPTED
Learning to practice in a pandemic
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02 The Complete Government Lawyer 10 A Lawyer’s Guide to Alzheimer’s &
June 4, 2020 | 9:00 a.m. – 4:00 p.m. Dementia
6.0 CLE credits, including 0.5 ethics credit July 14, 2020 | 9:00 a.m. – 4:00 p.m.
6.0 CLE credits, including 1.0 ethics credit and 1.0
elimination of bias credit
03 Advanced Contract Issues for In-House
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June 9, 2020 | 9:00 a.m. – 4:00 p.m. 11 Ethics: Lawyers Are Human, Too – Social
6.0 CLE credits, including 1.0 ethics credit Science and Professional Responsibility
July 21, 2020 | 9:00 a.m. – 12:00 p.m.
3.0 ethics credits
04 The SECURE Act: What Congress Did and
How to Respond
June 18, 2020 | 9:00 a.m. – 12:00 p.m. 12 Elimination of Bias: Lawyers Tackle Books
3.0 standard CLE credits About Bias and Diversity
July 21, 2020 | 1:00 – 3:00 p.m.
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05 Legal Ethics 2020: Case Developments and
Hot Topics
June 23, 2020 | 9:00 a.m. – 12:00 p.m.
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06 Elimination of Bias: Someone Like Me Can Do
This – Stories of Latino Lawyers and Judges in
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June 23, 2020 | 1:00 – 3:00 p.m.
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07 Pressure on the Privilege
June 25, 2020 | 9:00 a.m. – 4:00 p.m.
5.5 CLE credits, including 3.5 ethics credits
08 Minnesota LLCs – 2020 Update & Hot Topics
June 29, 2020 | 9:00 a.m. – 4:00 p.m.
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Register today at www.minncle.org
Questions?
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER V
MAY/JUNE 2020
www.mnbar.org
SPECIAL ISSUE
4 President’s Page
Coronavirus: Risks, LAWYERS, INTERRUPTED
Responses, and Learning to practice in a pandemic
Responsibilities
By Tom Nelson
16 Legal Ethics and 36 Tenant rights in
Professional
6
Responsibility
Risk Management the era of covid-19
Legal ethics in a pandemic in the Time of Pandemic By Andrea Palumbo and
By Susan Humiston By Chuck Lundberg Karmen McQuitty
8 Law & Technology 21 The Remote Lawyer’s 39 Understanding the
Working from home and tax impact of federal
protecting client data Survival Guide
By Mark Lanterman By Kristi J. Paulson covid-19 relief laws
By Adam D. Schurle
10 Legal paraprofessional 24 Technology is just one
pilot project of the tools we need to get
By Justice Paul C. Thissen & B&B DIGITAL-ONLY
Judge John R. Rodenberg through this crisis and the next mnbar.org/bench-bar
By Joe Van Thomme
Government transparency
27 Detours on the Path to
during the pandemic: A guide
Lawyer Well-Being: Finding
to Minnesota data practices,
our way forward in an
open meetings, and covid-19
upside-down world By Taya Moxley-Goldsmith and
By Joan Bibelhausen Katherine Bealka
12 Thoughts about
Commemorating the
Duluth Lynchings
30 Director Fiduciary Duties: How covid-19 may redefine
By William D. Green
Navigating financial distress “reasonable accommodation”
during covid-19 under the ADA and MHRA
42 Notes & Trends By George Singer and Chad Stewart By Charles R. Shafer
Landmarks in the law
33 Pandemic family Remote mediation: I’m 62.
54 People & Practice stress equals pandemic
Member announcements I wasn’t looking to Zoom.
family law stress I’m glad I did.
56 Opportunity Market By Christopher Vatsaas By Mike McKnight
Classified ads and Kendal O’Keefe
2 Bench&Bar of Minnesota s May/June 2020 www.mnbar.org
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www.mnbar.org May/June 2020 s Bench&Bar of Minnesota 3
President’sPage | BY TOM NELSON
Coronavirus: Risks, Responses,
and Responsibilities
B
y now, many of us (maybe undifferentiated pressure and endless a duty of “public service.” We are obliged
even most of us) have family to-do lists; distraction and lack of focus; to play a “vital role in the preservation
members or friends, or and bouts of exhaustion. The fact that of society.” Couple these obligations with
colleagues or acquaintances, we all have or will have these moments the troubling reality that the very fabric
who have tested positive for the virus, should, in its own way, prompt a brief of our democracy itself might be espe-
or have been hospitalized or put on but collective sigh of relief. Put simply, cially vulnerable during times of crisis,
ventilators, or even worse. All in the they’re entirely normal. and our duty as guardians of democracy
context of isolation and distancing, Luckily, along the way, we will also comes forcefully to the fore. Here are
and in the face of understandable fears have moments of grace, gratitude, and three dynamics, in particular, that are
for our own personal health and job humor. We will employ and enjoy new cause for concern.
security, hitting far and wide, and all too twists on our vocabulary—with N95
close to home. Such are our times. being a mask instead of a highway; Zoom The rule of law
Lawyers that we are, our core wiring being a new lens into our lives (and our The origins of the phrase are ancient
and an adrenaline rush have no doubt home décor); the “Corona Curve,” de- and a bit elusive, but we know what it
kicked in, prompting us to triage a hi- scribing how we navigate our occasional means: “Lex Rex,” not vice versa. We not
erarchy of needs: family and personal walks under the rule of social distanc- only respect it, we revere it; we depend
safety first, of course; then staples and ing; and, of course, the 7 p.m. “Pounding upon it. It is our bedrock, our North
supplies; and plans and strategies in the of the Pans.” We will be reminded that Star. Its key is the separation of powers
event of illness or emergency. That’s who a smile and laughter, too, can be a good and checks-and-balances in our govern-
we are—inclined to be, or at least seem, (and maybe the best) medicine: watch- ment—an equilibrium amongst equal
in control. It’ll take some getting used ing a Rube Goldberg video; an Ode to branches. It depends upon independent,
to, this not being totally in control. On Joy flash mob; a Some Good News epi- non-political judicial review—and the
top of all that, we are obliged and lucky sode; stuffed animals in the window for vote—as well as equal justice, and ac-
enough to be asked to help clients and kids to wave at; for the lucky few, the cess to justice, for all. Representatives,
colleagues, who have their own hu- now-sweet smell of Purell; a chaotic and senators, judges, and presidents alike are
man, as well as law-related and business- even comic multi-site family holiday; all required to take an oath to support,
related, needs. It’s a lot, and sometimes and jazz, opera, a single cello, or hip-hop preserve, protect, and defend the Consti-
it’ll seem like too much. Such is our lot. from balconies around the world. tution. Our rights under the rule of law
It’s hard to discern when and Amazing, indeed, how the technology were not only granted but fought for and
how we’ll get to the other side of this that allows us to “go remote” helps us to won, and taking those rights for granted
experience, and how we’ll even know stay “in touch.” We will remember, too, will only serve to weaken them. As law-
when we get there. Short of a vaccine, I to be grateful to those who are helping, yers, we are responsible for guarding and
suppose. It’s like running in a marathon and supportive of those who are not as preserving the rule of law. That is one of
with no finish line, or climbing a cloud- fortunate. Disproportionate impact is our most important “essential services”
topped and summit-less mountain. We surely a fact. In its own way, today’s virus during these difficult days.
seem not only has laid bare our world’s unfair dispari- But the rule of law is being subjected
to be looking, ties—putting in stark relief the need for to surprising and disturbing challenges,
but stepping, civilized relief. Imagine, just for a mo- isn’t it? Even attacks. Importantly, no
through the ment, what it might be like to be ordered elected official has “total” authority (the
looking glass. to “stay at home” when you have no root, of course, of the term “totalitari-
There will be home, or when you can’t do from home anism”); and no virus, no matter how
phases and the job that you and your family depend powerful, has the authority to crown a
stages along upon; or when “home” is where violence king or queen. So what should be our
the way (all of lurks or lives. response to such challenges? Well, surely
which we will Not that you don’t have enough to not silence. Silence either is or is deemed
likely have in worry about, but in the midst of all this, to be consent. No, I think we have to
TOM NELSON is a common, even we lawyers also have some especially im- speak up—to clarify and confirm, and
partner at Stinson LLP if at different portant matters to tend to—and work to to educate. That may be uncomfort-
(formerly Leonard, times): patience do. We are, after all, a unique profession, able on occasion, but it is also what our
Street and Deinard). and fortitude; bound by a cultural contract of service unique role requires, and what the public
He is a past president confusion and and citizenship. It’s in our rules; it’s deserves. Maybe these moments call for
of the Hennepin County hope; periodic part of our pledge and promise. We are a new wave of civic education, following
Bar Association. denial or anger “public citizens,” bearing a “special re- the lead of Justice Sandra Day O’Connor.
or panic; sponsibility for the quality of justice” and More people, current citizens as well as
4 Bench&Bar of Minnesota s May/June 2020 www.mnbar.org
new citizens, need to know more about The justice gap
the basic and delicate design of our de- Our justice gap is widening, and it LATERAL PARTNERS:
mocracy. That doesn’t call for politics, it threatens to widen even more in the
calls for citizenship, and that, too, is who wake of the pandemic. For example, civil
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we are. It’s the least we can do. legal aid is forced to turn away fully 60 CENTURY of GROWTH.
None of which is theoretical or percent of those otherwise eligible for Meagher+Geer is a successful national firm with
ethereal. No, there are on-the-ground, help because of lack of resources. Beyond multiple offices incorporating a diverse range of
practice areas and we are looking to expand our
real world realities to the rule of law, that, a justice gap is going to explode for existing office in Minneapolis. As part of our
which require us not only to speak up those neither “poor enough” to get what continued plan for our next century of growth, we
but also to roll up our sleeves. On the civil legal aid help there is nor “rich are interested in hearing from lateral partners with
criminal front, for example, there are enough” to hire the lawyer or lawyers of an established practice to join us in our Minneapolis
office. Our firm, 90 years young, offers an
grave concerns about custody (including their choice. excellent platform for lateral attorneys, providing:
the rights and health of prisoners, prison Right now, our economy seems to be dedicated marketing support
staff, and law enforcement), and disturb- in a “medically induced coma,” neces- flexibility on rates
ing dilemmas arising out of the rights of sary for our nation’s health, but not support of a strong bench of
experienced attorneys
speedy, public, and safe jury trials and meant to last for long. That light at the deep insurance industry contacts
proceedings. On the civil side, although end of the tunnel, though, may turn out
If you are interested in the opportunity to grow
sometimes not so dire, we have to be to be a train barreling our way, bearing your practice and become part of an established
concerned about emergencies and equi- boundless, burdensome, and all-too-real leader in the Minneapolis legal market with a
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to consider them. brutal vice, with needs skyrocketing and you to contact us in confidence to discuss your
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resources plummeting. Our coming reali-
Please contact Heather Neubauer at
The right to vote ties could well include clients (corpo- hneubauer@meagher.com | 612.371.1308 or
Our right to vote is “the crown rate or individual) considering stand- Kurt Zitzer
jewel of American liberties;” the “very downs and slow-downs or downright kzitzer@meagher.com | 480.624.8570
foundation of our American system;” shutdowns, cutbacks in non-essential for further information.
“fundamental” and “precious” and “the litigation or transactions, and drag-outs
essence of a democratic society.” It is in the payment of accounts payable.
and should be our secular sacrament; in All of which will likely be coupled with
its own way, sacred. It’s also “Civil Right pressure to keep production up, collec-
No. 1.” To put it bluntly: If you don’t or tions flush, and docket management MINNEAPOLIS | CHICAGO | PHOENIX | BISMARCK
can’t vote, you won’t be counted—which on track, no doubt leading to fall-back
puts in peril our ability to influence our leaves and furloughs, accompanied by
shared political dynamic. This should be genuine concerns about lawyer well-
an especially powerful presence this year, being and professional responsibility. Not
when we mark the 100th year since the all of the coming legal needs will fit into
passage of the 19th Amendment, and the current models of our professional
while we conduct thousands of elections business; the flood will likely be high in
all over the country. volume and of ferocious velocity, with
It’s also a fragile right, subject to only low or no hourly rates available. We
clever, even cunning, schemes dedicated won’t be able to “pro bono our way out
to suppression (warped gerrymandering, of it.” Returning to our American way
where politicians seem to choose the vot- of life will surely require getting back to
ers instead of vice versa; burdensome ID business, but it will also require deliver-
Brandt Criminal Defense congratulates
demands; and unnecessary restrictions on ing justice as promised. We will need
absentee or mail-in or multi-day voting, new and creative models, as we open our
even in the midst of bipartisan support). way toward our new and next normal. ERIC BAIN
Voter suppression is like water running This is, to say the least, “an uncertain
into our home’s basement—seeking the spring,” and it promises to reach into on starting his own law firm, Bain Law.
lowest levels and rotting out the footings. our summer and beyond. The process
Our duty, then, is to preserve and of recovery will not resemble an on/off
guard the right to vote—to strengthen it, light switch. No, it’ll be more like sliding
not strangle it. We should guard against a dimmer toward the light. Hopefully,
real voter fraud, of course, if and wher- we’ll have the chance and strength to
ever it exists, but we needn’t be stymied find value in these vulnerable times,
by fabricated fraud. This is especially and to note and take advantage of les-
true now, when the health of voters sons learned. That is our responsibility
and polling place volunteers is at stake, as well as our opportunity. We all, of
all of which is tied to the health of our course, long for the day when we can
democracy. That all seems fair enough. get together again. It’ll come; and we
The point of an election, after all, is to will value it anew. In the meantime, may
win the vote, not to suppress it or deny “[n]othing ill come near thee.” Along
it altogether. Maybe we need an emer- the way, don’t leave love or friendship
gency infusion of funds to build a better unsaid. Be strong, safe, and kind; and
infrastructure to support the people’s stay “in touch.” s
right to vote.
www.mnbar.org May/June 2020 s Bench&Bar of Minnesota 5
ProfessionalResponsibility | BY SUSAN HUMISTON
Legal ethics in a pandemic
I
n the “before time” most of us were comfortable with how only using secured networks and maintaining strong password
the ethics rules applied to our day-to-day legal practice. A protection. Other basics: Is your home network secured by a
short while ago the world dramatically shifted around us, password? Does your computer have updated security patches?
requiring us to do our jobs in very different ways. In the These are questions that we may not ask ourselves enough but
midst of these changes, lawyers and their staffs may not have certainly must be asking now. A lot is required of us to ensure
thought through the ethics questions presented by the new technological competence in remote working environments.
normal. I certainly don’t have all the answers, but I do have Your duty of confidentiality requires you to protect client
some guidance. information. Much of this is encompassed under competent
technology use, but old school basics are still important. Are
What has not changed you discussing client information around family members? Can
We have received a lot of calls on our ethics line regarding your neighbor working in his yard hear your client call because
how to address particular ethics issues relating to covid-19. your window is open? Do you have a secure place to maintain
While the topics vary, there is a general sense that some law- client files? Is Alexa listening in? Are you securely destroying
yers are hoping our response will be that whatever the court client information? Are you taking pictures of your new work
or client is asking them to do, it is incompatible with their space and posting them to social media?A special note on that
ethical obligation in times of a pandemic. Invariably we must last point: Just don’t. If people can see your work space, stop
reply that, no, all of the ethics rules remain in full force and and think about what might be disclosed when the pictured is
effect. The rules, particularly those that are nondiscretionary, zoomed in. Have you discussed all of this with your staff? Do
generally do not have exigent circumstance exceptions. Even you understand your staffers’ work environment, and believe
those rules that incorporate “reasonable” refer to “a reasonably they are doing what you are doing to protect client confi-
prudent and competent lawyer.” The rules do not expect you dences? Your ethical duty of supervision requires you to make
to simply do your best under the circumstances, but rather set reasonable efforts to ensure that your nonlawyer staff’s conduct
a minimum standard of conduct for lawyers irrespective of the is compatible with your ethics obligations. This is particularly
circumstances. As attorneys, we must embrace the challenge important now, when many on nonlawyer staff are working
of ensuring that the new manner of our practice is compliant. remotely for the first time. Remote working agreements that
There are two general areas I would commend to your particu- detail these ethical obligations (primarily around technology
lar attention: remote work and issues of incapacity. use and confidentiality) are a good way to assist in meeting this
obligation.
Remote work Your duty of communication is also extremely important
Your duty of competence requires you to maintain the requi- during these times. Do you know how to get hold of your client
site knowledge and skill needed to practice, “including the ben- and have you effectively communicated how to best get hold of
efits and risks associated with relevant you? Have you updated your outward-facing materials to facili-
technology.” Remote access to networks, tate easy contact with you? Is someone staying on top of mail,
video conferencing, and electronic and promptly getting it to remote workers? Have you explained
signatures thereby join email, wifi, and how covid-19 will affect the matter you are handling? Do you
cloud-based storage on the list of areas know to whom you can speak if your client is incapacitated and
that lawyers are obliged to understand. you need direction? Does your client know who will contact
All platforms have potential security is- them if you become incapacitated?
sues, and compliance with this duty does One of the most important things we do is communicate
not require systems to be infallible. But with our clients the information they need to make informed
SUSAN HUMISTON your ethical duty does require you to in- decisions about the representation. What makes our jobs
is the director of the form yourself of how to use the technol- difficult is that in many respects, our evolving grasp of the
Office of Lawyers ogy correctly and what vulnerabilities it substantive law implications of covid-19 will lag our obligation
Professional may have as part of a continuous vetting to provide real-time advice and counsel. The guidance that
Responsibility and process. Everyone asks, can you ethically ethics provides in times like this is that you must stay informed
Client Security use Zoom for client calls? Yes, provided about the changing landscape, and you must communicate
Board. Prior to her you understand and follow the security what is known and unknown to the client so that the client
appointment, Susan recommendations (including password- can make informed decisions. This requires you to discuss the
worked in-house protected meetings). client’s various options relating to the matter so that the client
at a publicly traded The main point is to continually as- can make informed decisions about how they wish to proceed
company, and in sess your technology platforms to ensure in the new circumstances, and the best practice is to document
private practice as a you are using them correctly and under- those discussions. If you do not know, you also should disclose
litigation attorney. stand and adjust to any needed correc- that. If you think too much is unknown to provide competent
SUSAN.HUMISTON tions. I cannot emphasis this enough. guidance, you must raise those concerns with the client in
@COURTS.STATE.MN.US Sometimes I feel that lawyers have order that objections can be raised, if that is the decision, or
managed the barest of basics—such as continuance can be sought until more guidance is available.
6 Bench&Bar of Minnesota s May/June 2020 www.mnbar.org
Your duty of diligence requires you to act with reasonable if you have not already. Such planning need not be compli-
diligence and promptness in representing a client. Comment cated. It starts with identifying one or two people who agree to
[1] to this rule requires us to pursue a matter despite “opposi- help temporarily if something happens to you, and keeping your
tion, obstruction, or personal inconvenience to the lawyer.” files in good enough shape that someone can review them and
You need to stay on top of your calendar, and pay particular understand the current status and next steps.
attention (as always) to statutes of limitations and schedul-
ing deadlines. Because actions may take longer to accomplish Conclusion
remotely, you must anticipate such challenges, such as figur- I wish I could provide more specifics or tell you not to worry
ing out how you will perform previously routine tasks such as because we all have enough on our plates, but I cannot. Your
e-filing or gathering affidavits. Your particular health cir- ethical obligations remain the same in the face of this pandem-
cumstances may raise an issue of whether you can diligently ic or any other disaster. But you are well-suited to rise to this
continue representation. occasion if you know the basic ethics requirements and think
Courts and opposing parties may work with your particular through how they apply to new circumstances. Asking yourself
circumstances, or they may not. What is the backup plan for the above questions will go a long way toward guiding you to
the representation if you have to self-isolate or become ill and compliance, and there is no substitute for just sitting down and
critical deadlines are approaching? Lawyers are good at assist- reading the rules and thinking about the new ways in which
ing clients with contingency plans and terrible at making their you practice.
own. If you are experiencing a downturn in work as clients Remember, too, the adage that what goes around comes
put off legal expenses (or even if you are not), use this time around. Now is not the time to forget basic kindness and
to think through contingency plans for specific matters, and civility. It is difficult to exaggerate the amount of stress that
for your practice in general. Also take the time to make sure everyone is feeling. If any time called for professionalism, it is
your active files are in good shape. One of the most daunting now. Also, remember we can help you with any specific ethics
things about this virus is all that we do not know about how issues you have. The best way to contact us in these remote
it’s spread, so it’s difficult to accurately gauge our individual working times is through our website at lprb.mncourts.gov/Law-
vulnerability. Now is the time to plan for a worst-case scenario yerResources/Pages/AdvisoryOpinions.aspx. Take care. s
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www.mnbar.org May/June 2020 s Bench&Bar of Minnesota 7
MN Bench and Bar 2020
Law&Technology | BY MARK LANTERMAN
Working from home and
protecting client data
I
n recent days, remote work has become the norm in the tion policies protect client data by making data unreadable
legal community. Teleconferencing, email, and myriad until it is “unlocked” via a decryption key. Use of VPNs, strong
digital communication methods are even more important passwords and multi-factor authentication, avoiding public wifi,
now than they were before the covid-19 pandemic. This and securing endpoints are all a few ways that remotely working
abrupt shift requires consideration of ethical obligations when attorneys can protect their clients. Other important steps in se-
sending and receiving client data and personal information curing remote work environments: avoiding suspicious websites
electronically. It’s especially critical now, since many organiza- or links, updating software when necessary, and making sure to
tions had to rush to get proper remote work infrastructure only use approved technologies (such as known USB devices or
in place, emphasizing convenience and operationality over hard drives). Each remote device in your network is essentially
security protocols. The legal community is held to a particu- another gateway, another potential access point for an attacker;
larly high standard when it comes to protecting client informa- the covid-19 pandemic has brought about a number of nasty
tion, and is therefore required to stay apprised of best practices attack campaigns for which we should all be on the lookout.
in cybersecurity. Referring to the CIA triad—a security model Training on phishing scams and social engineering attacks
that focuses on the confidentiality, integrity, and availability of helps to mitigate some of the threat, as these attacks are regu-
data—is helpful as we work to optimize security and efficiency larly conducted through email. As cyberattackers continue to
in our remote work environments. take advantage of covid-19, staying apprised of potential cyber
According to the ABA Standing Committee on Ethics and threats is an element of cybersecurity awareness that is required
Professional Responsibility’s Formal Opinion 477R: of attorneys. Slowing down can make all the difference when
it comes to becoming a victim or spotting an attack. If an email
A lawyer generally may transmit information relating to seems strange, unexpected, or urges you to act quickly in a way
the representation of a client over the Internet without that violates standard procedures, think twice. Communicating
violating the Model Rules of Professional Conduct where any suspicious activity while working remotely helps to prevent
the lawyer has undertaken reasonable efforts to prevent breaches; it also helps to inform clients of when they can expect
inadvertent or unauthorized access. However, a lawyer communications and what they will contain.
may be required to take special security precautions to Just as client data must remain confidential, ensuring its
protect against the inadvertent or unauthorized disclo- integrity and availability are top priorities. Managing access con-
sure of client information when required by an agree- trols in-house lessens the risk that client data will be inadver-
ment with the client or by law, or when the nature of the tently (or purposefully) altered or destroyed. Make sure that the
information requires a higher degree of security. IT department is performing regular backups in a sound manner,
and that system upgrades are being conducted when necessary.
This requirement acknowledges This pandemic has brought about a high number of cyberat-
that using technology is imperative for tacks, especially against those organizations that were under-
efficiency and ease of communication prepared for remote work and are now even more vulnerable.
with clients. But it also maintains that Denial-of-service and ransomware attacks can leave an organi-
lawyers must have a degree of technical zation unable to operate for an extended period of time. Having
proficiency and knowledge of cyberse- a backup plan protects against the financial, reputational, legal,
curity best practices. Lawyers must do and operational risks that come with a cyber event.
everything in their power to protect the In many ways, cybersecurity is now more important than
confidentiality of client data, and to ever. Given their reliance on digital devices and communication,
MARK LANTERMAN make sure that in the event of a com- attorneys should take special note of their ethical obligations in
is CTO of Computer promise, data would still be accessible. dealing with client data. Remote work security strategies should
Forensic Services. The confidentiality, integrity, and acces- be communicated to clients, as well as how they should expect
A former member sibility of client data is paramount as the to be contacted during covid-19 (establishing, for example, what
of the U.S. Secret legal community continues to work at types of information will be transmitted via email). Moving out
Service Electronic offsite locations. of our physical work spaces does not mean that we can ignore
Crimes Taskforce, Though the situation is challenging, the security protocols governing how we use technology in the
Mark has 28 years now is not the time to shrug off poor office. If anything, additional layers of diligence and informa-
of security/forensic security practices. Relying on email tion-sharing should be added to account for the complex threats
experience and disclaimers such as “If you are not the we now face.
has testified in over intended recipient of this email, please Going above and beyond those “reasonable efforts” is neces-
2,000 matters. He is delete” is not enough to ensure the sitated by the extraordinary working situation in which many of
a member of the MN confidentiality of client data. Shifting us find ourselves. Maintaining a strong personal cybersecurity
Lawyers Professional blame from the sender to the unintended posture may help to ease some of the risks that a reliance on
Responsibility Board. recipient is not an acceptable security remote work introduces; it may also ease the minds of clients
strategy. Instead, standard email encryp- during a time when many things seem uncertain. s
8 Bench&Bar of Minnesota s May/June 2020 www.mnbar.orgSTART SAVING
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paraprofessional
pilot project
sought to improve
access to justice
By Justice Paul C. Thissen and Judge John R. Rodenberg
L
itigants going through a divorce or facing eviction documents without the supervising attorney’s final review.
are often not represented by an attorney. This lack (See Report Appendix G in the Committee’s report for a
of representation has real consequences for litigants list of approved documents.)
and for the trust people have in our courts. But those
litigants—and lawyers too—now have an opportuni- The committee also recommended that the pilot would be lim-
ty to weigh in on a proposed two-year pilot project allowing legal ited to district courts in counties that have established a housing
paraprofessionals to deliver civil legal services in family law and court or a dedicated calendar for landlord-tenant actions, and
landlord/tenant law cases under the supervision of a licensed to family law cases that do not include allegations of domestic
attorney. The pilot will test and assess whether allowing legal violence and/or child abuse.
paraprofessionals to provide additional services will increase ac- The Implementation Committee for the Proposed Legal
cess to competent, quality representation for low- and modest- Paraprofessional Pilot Project is an outgrowth of the recommen-
income Minnesota litigants, reduce court congestion, and pro- dations made by the 2017 Minnesota State Bar Association’s
vide opportunities for lawyers to expand their practices. (MSBA) Alternative Legal Models Task Force. The work of the
The recommendation for the new, expanded authority for le- committee is also in line with the recently passed American Bar
gal paraprofessionals was part of a report filed on March 2, 2020, Association resolution encouraging the adoption of regulatory
by the Implementation Committee for the Proposed Legal Para- innovations to address the access to justice crisis in the United
professional Pilot Project. Under the recommendation, a roster States. The committee was co-chaired by Minnesota Supreme
of legal paraprofessionals who meet strict education, experience, Court Associate Justice Paul C. Thissen and Minnesota Court of
and ethical requirements would be assembled to provide the ser- Appeals Judge John R. Rodenberg. Lawyers and paralegals from
vices. Feedback about this proposed pilot is being sought by the throughout Minnesota made up the membership.
Minnesota Supreme Court. The Supreme Court order establish- The committee held 11 public meetings and met subsequently
ing a public comment period and hearing, which also includes to summarize the work for its report. Its work included conduct-
a copy of the Implementation Committee’s report and recom- ing a survey that was distributed online and to all licensed at-
mendations, can be found at bit.ly/3flP1g5. torneys, district court judges, and paralegal association members
The recommendations include clear and specific instances in in Minnesota, and yielded 579 survey responses. The committee
which a legal paraprofessional may appear before the court, offer also convened a focus group consisting of additional attorneys
legal advice, or file documents on behalf of a party. Specifically, and legal paraprofessionals which was held over the course of
legal paraprofessionals: two days. Members of the committee met with divisions of the
MSBA to explain the committee’s charge and to hear concerns,
n may provide advice to tenants and appear in court comments, and other feedback from lawyers. Its work and ma-
on behalf of tenants in housing disputes defined in Min- terials can be found on the committee’s webpage: mncourts.gov/
nesota Statute Chapter 504B, as well as eviction expunge- implementation-committee.aspx.
ment proceedings; Any member of the public can review the report and the Su-
n may provide advice to and appear in court on be- preme Court order establishing the comment period and public
half of clients in cases dealing with child support modi- hearing using P-MACS, the Minnesota Appellate Courts Case
fications, parenting-time disputes, paternity matters, and Management System, under case number ADM19-8002, or find
informal family court proceedings; it on the committee’s webpage. Public comments must be sub-
n may represent clients in mediations where, in the mitted to the clerk of the Appellate Courts no later than July
judgment of the supervising lawyer, the issues are limited 17, 2020. The public hearing to review submitted comments will
to less complex matters, such as simple property divisions, take place in the Supreme Court Capitol Courtroom on August
parenting time, and spousal support; and 11, 2020, at 10 a.m. and will be livestreamed via the Minnesota
n may prepare and file a limited and identified set of Judicial Branch website. s
10 Bench&Bar of Minnesota s May/June 2020 www.mnbar.orgadvertisement
Mitchell Hamline professor Ana Pottratz Acosta
wins award for helping immigrants
Attorney moved quickly after program was shut down
BY TOM WEBER
W hen the Trump administration ended a program in
2017 that had given temporary legal residence to
nearly 3,000 minors from Central America, Ana Pottratz
Acosta sprang to action.
Working with the International Institute of Minnesota,
the immigration attorney helped screen those in the program,
called Central American Minors (CAM), to see if another
immigration path was possible. Later, an organization that
sued the administration over the elimination of CAM cited
Acosta’s work in its litigation that eventually led to the
program’s reinstatement.
“Ultimately, we didn’t know what was going to happen
when we did legal screenings in fall of 2017,” said Acosta, an
assistant teaching professor at Mitchell Hamline and clinical
instructor for the Medical-Legal Partnership. “But it ended
up being much more successful than we ever thought it
would be.”
For this and other work in the rapidly changing world of
immigration law, the International Institute of Minnesota
recently awarded Acosta its Olga Zoltai Award. The award is and now works for the U.S. Senate. “Her kindness, compassion,
named for a Hungarian refugee and immigrant advocate once and empathy are matched by her deep well of knowledge that
referred to by the Star Tribune as the “patron saint of area she uses to help vulnerable populations.
immigrants.” Zoltai also co-founded the immigration law “Her approach to lawyering should be a goal for all attorneys.”
clinic at William Mitchell College of Law in 1985. Acosta, 40, joined the Mitchell Hamline faculty in late 2016;
The daughter of a Mexican immigrant, Acosta grew up in her first class paralleled a new president beginning his term
the central Minnesota town of Melrose. She gravitated toward enacting several highly controversial changes in immigration
immigration law, especially after working on an asylum case in law and policy.
law school. She then worked with immigrants and refugees at “A lot of the problems highlighted now have existed a long
Lutheran Social Services of New York for six years. time, but a lot of issues, particularly in removal and asylum laws,
In Minnesota, her work has included helping young people are being exacerbated now,” said Acosta. “The silver lining is
in the DACA (Deferred Action for Childhood Arrivals) students are very motivated to help, and I feel lucky to be in
program and even going to Tijuana, Mexico, in late 2018 a position to be teaching and training the next generation
to advocate for asylum-seekers. As clinical instructor for of lawyers.”
the Medical-Legal Partnership, Acosta supervises students in
assisting patients at United Family Medicine in St. Paul with
legal issues affecting their health, including issues related to
immigrant status.
“Ana is an extraordinary immigration attorney,” said fellow
immigration lawyer Kara Lynum, a 2011 graduate of William
Mitchell. Lynum accompanied Acosta on that trip to Tijuana
MITCHELLHAMLINE.EDU/BBThoughts about Commemorating
the Duluth Lynchings
A prize-winning Minnesota historian looks at the
legacy of the murders 100 years later
By William D. Green
A memorial built in 2003 at the site of the lynchings in Duluth, MN. Photo by Carol M. Highsmith – Library of Congress
12 Bench&Bar of Minnesota s May/June 2020 www.mnbar.orgA
fter a lecture I gave in Rochester earlier this year,
a man walked up to welcome me to the city and
thank me for my remarks. After a brief exchange,
he asked me if I planned to go to the June 15 com-
memoration of the Duluth lynchings. I said that I
had other commitments. At the time, I hadn’t fully realized how
much of an event it was scheduled to be—not in terms of activi-
ties, but the scope of its impact on the community. In the quieter
moments of my drive home, I wondered whether I was missing
something bigger than the apparently widely anticipated, long-
overdue recognition of that tragic event. And this—my reac-
tion, that is—began to perplex me, as well.
In the early ‘90s, when I first began teaching at Augsburg Uni-
versity, I had come across a book entitled, uncomfortably, They
Was Just N*****s, taken from a statement that one of the lynch-
ers made in defense of his action. The author, Michael Fedo,
a native of Duluth, had selected the title, to the discomfort of
his publisher, in order to provoke attention to the incident and
the sensibility of Duluthians at the time, as well as to stimulate
thoughtful reactions. He definitely succeeded, but not in the way
he had hoped. After his public readings, especially in his home
city, it was not unusual that people (at least in one place—the
public library) had lined up to tell him that in writing the book,
he had wrongly aired the city’s “dirty laundry.” They must have
felt a sense of justice when the book was allowed to quietly go out
of print. Though it had long since vanished from bookshelves,
Michael agreed to join me in a panel discussion at the campus.
I secured a classroom but made few preparations for an event
I expected to be small. After all, faculty were grumpily grading
finals; and as fortune would have it, the day of the event hap-
pened to be the first beautiful day of spring, when there would
surely be much celebration by students in the park. I was stunned
to see the room slowly fill with students, faculty, and even people
from the community standing wall-to-wall to hear the story. A
conversation scheduled to run for an hour lasted all afternoon
because, as it turned out, many people wanted to know more.
Some, no doubt, considered what Michael described to be like a
M
parallel universe where people in the mob were completely (and
perhaps even safely) foreign; to them the story, while interesting, ichael would later recount his father describing the
ultimately had little to say to or about modern Minnesota. Some reaction of a long-time friend who had stopped by
were drawn to the macabre tale like moths to a flame, and some- the house, seen a copy of this new edition on the
how, in turn, felt licensed to luxuriate in their own rectitude. coffee table, and exclaimed in horror—not as much
Others still simply wanted to learn, and in doing so, to give trib- at the awful image of the three hanged African Americans as at
ute in some small way to the memories of Isaac McGhie, Elias one of the gleeful white faces taking in their triumph: her own
Clayton, and Elmer Jackson—and perhaps thereby to extend beloved father. I wondered what kind of horror a non-relative
quiet sorrow and even apologies for the sins of the fathers. But would feel at the sight of the hangings, or at the thought that
none present was in denial: There was a unanimous recognition the hangings occurred in our state. In 1920, it appeared that
that the awful incident had occurred. My gallows humor led me right-thinking Minnesotans were shocked for the second reason.
to presume that it was because we weren’t in Duluth; but, really, They smelled the smoldering embers, but didn’t look to see from
I wanted to believe that by the time of that discussion, even the where the smoke was coming.
older citizens of Duluth had come to acknowledge that chapter Nationwide, lynchings and mob violence against African
in their city’s history. Americans had become commonplace. In 1915, The Birth of
I was pleased to learn afterward that the Minnesota Histori- a Nation drew sell-out crowds at movie theatres, Minneapolis
cal Society had decided to reissue the book, albeit under the included, giving license to find entertainment in the image
less-provocative title The Lynchings in Duluth. To the credit of of a black man swinging from a tree. Nellie Francis, a black
the editors, they selected a cover that would leave no doubt as leader at the time, was even more alarmed to hear from white
to what the book was about: the infamous black-and-white pho- political allies that the film was harmless. The superintendent of
tograph of two African Americans hanging from the lamp post, Minneapolis schools praised the film for its educational merit. In
a third prone before them, all surrounded by white men mugging 1916, the women’s suffrage chapter in Albert Lea used the film
for the camera like fishermen displaying their prize catches. to promote the movement.
www.mnbar.org May/June 2020 s Bench&Bar of Minnesota 13Meanwhile, the NAACP collected data on racial violence in widespread belief in their inherently bestial nature. On a dif-
the country, reporting in 1920 that over the 31-year period from ferent front, firemen and police officers were frustrated by their
1889 to 1919, 2,549 black men (most of them accused of rap- own negotiations with the city for better wages. The U.S. At-
ing a white woman) and 51 black women were lynched. During torney had recently been indicted for smuggling Canadian whis-
the year of 1919 alone, 78 African Americans were lynched, key. Jailers harassed women prisoners from the working-class
11 of whom were ex-soldiers. One was a woman. Fourteen were neighborhood of West Duluth. During the events of June 15,
burned at the stake. Twenty-eight cities staged race riots in the mayor was out of town and the police chief sat ensconced in
which more than 100 black people were killed. And even as his office on the top floor of the police station, where he would
some of these facts appeared in newspapers of the day (though remain throughout the rioting.
less so in the white press), Minnesotans, if they were aware at During the assault on the jail, officers were ordered not to
all, looked on as if those events had occurred on the other side fire on the encroaching mob. Upstanding citizens watched with
of the moon, assured by the conviction that they were the in- amusement as the mob either cut fire hoses about to be trained
heritors of a tolerant and civilized community where such things on them or turned them against the police standing out front.
did not occur. Three months after the report appeared in March One of the “judges” on the kangaroo court that condemned
1920, the Duluth mob assembled to commence its deadly work. the prisoners had weeks before written an award-winning high
The point is, it did not happen spontaneously. The “fire” school essay that condemned lynching in America.
needed kindling that had been widely spread by the degrading Carl Hammerberg, an immigrant teenager of diminished ca-
social custom of racial discrimination. But the absence of re- pacity and limited English skills whose curiosity drew him into
ported dust-ups between black and white Minnesotans lulled the wake of the mob as it rampaged through the jail—punch-
the society into believing that there were no racial problems. ing holes in walls, roughing up officers, and passing the black
Blacks in St. Paul, Minneapolis, and Duluth avoided the in- men into waiting hands to be hanged—would become one
dignity of bad service in white-owned establishments and plac- of only three “culprits” convicted for the crime of rioting. He
es—including most of the cities’ streets—where they could be would likely have shared one of the few cells that had not been
subject to harassment and insult. A variation of Jim Crow ruled destroyed with the only black man who would later be found
within much of the North Star State. In effect, the permission guilty of raping the young white woman. Meanwhile, a black
to dehumanize had been codified. To avoid the perennial threat man coming home from work saw the “excitement” but was told
of having their dignity affronted, the black middle class was dis- by a nearby white man in the crowd that he best hurry home
couraged from being visible while the black working class was because the crowd was about to kill some Negroes. As the mob
reduced to a valueless stereotype. To the passive white observer, surged forward, a priest futilely called for calm. Later a reporter
the arrangement seemed benign. But at the time, they had no would liken the doomed men as they were hoisted up to bal-
sense of recent history. In 1895 in St. Paul, black men on two loons ascending upward over a carnival.
separate occasions were nearly lynched, one virtually in the None of the senior officials believed that it could happen
shadow of the state capitol, both to the cheers of a mainstream in “one of the most racially tolerant, northernmost states in
press that had, only four years earlier, praised a black girl named the Union.” County Attorney Warren Greene told jurors at the
Nellie Francis for delivering a high school graduation speech on opening of the first trials that it was incumbent upon the jury
America’s responsibility to address the race problem. system to remove the stain, for the lynchings had lowered Min-
Paradox has always been the key element to understanding nesotans to the level of Southerners: It was really, he said, the
race relations. But because Americans have never done well jury system that was on trial. But with each acquittal, the cheers
with paradox, we’ve never done well talking about race. We from outside the courtroom grew in volume, blurring the line
come close by looking at the sensational. And what could be between due process and mob law. With the conviction of the
more sensational than the stark duality of race and sex evinced immigrant youth and the others by a jury no longer composed
in the Duluth lynchings of 1920? Yet I think the lynchings of working-class men, boosters of the state hoped that Minneso-
themselves may paradoxically cloud the elements, not just re- ta’s standing would be rehabilitated. No one was prosecuted for
garding what happened, but how the events in Duluth demon- murder. Only one black man was convicted of rape. All other
strated that the city and state were fundamentally no different charges were dropped. The city could then decide that this was
from other places where similar tragedies occurred, North and enough: best (as they say) to let sleeping dogs lie.
South. Max Mason, the black man found guilty of rape, appealed
Labor strife had lately intensified in the region, and the city’s his conviction before the state Supreme Court, challenging the
largest employer had brought in large numbers of black workers method by which he was identified by the accuser. The convic-
from the South. In the middle of what had already been a hot tion stood, though a dissenting opinion asserted that the identi-
summer, there were too many young men anxious to show their fication of Mason was flawed: “It is common knowledge,” wrote
manhood after being deemed ineligible to serve in the recently Justice Dibbell, “that colored men are not easily distinguished
concluded “War to End All Wars.” J.A.A. Burnquist, the pro- in daytime and less readily in the dark or in the twilight. Young
business Republican governor who had cracked down on radi- southern negroes, such as [Mason], look much alike to the
cals, labor activists, and war dissenters, was also president of the northerner. The proof is in the case.” The curious yet divergent
St. Paul chapter of the NAACP and thus the friend of my enemy logic of racial awareness in the opinion and the dissent were
in the eyes of many around Duluth. Readers of local newspapers like branches of the same tree: The life and soul of black men
saw a steady stream of depictions of African American men ei- were immediately devalued because they all looked alike. Ac-
ther as shiftless caricatures or criminals—typically petty thieves cordingly, the whole ugly chapter could now be closed and in
or sexual predators of white women, or both, to reinforce the the end, no one would get justice. The stain seemed destined to
14 Bench&Bar of Minnesota s May/June 2020 www.mnbar.orgYou can also read
