OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER V MAY/JUNE 2019 www.mnbar.org
The Guns Aren’t Illegal. But Sometimes the Owners Are. Understanding Minnesota’s private-transfer exception suggests the best path to reducing gun violence
Your smartphone and the 5th Amendment
Lessor beware: Tenant trademark infringement
Lessons learned from the Lunds shareholder litigation
Only 2019 MSBA CONVENTION $125 June 27 & 28, 2019 • Mystic Lake Center • www.msbaconvention.org for MSBA Members EXPERIENCE THE BEST 12:15 – 12:30 p.m. 4:00 – 5:00 p.m. 9:40 – 10:40 a.m. THURSDAY, JUNE 27 Remarks by American Bar Association President ED TALKS BREAKOUT SESSION D OF THE BAR Bob Carlson 7:30 – 8:30 a.m. • Making the Case for Sleep 401) Someone Like Me Can Do This – CHECK-IN & CONTINENTAL BREAKFAST 12:30 – 12:45 p.m. Dr. John Parker; Sleep Performance Institute; Minneapolis Stories of Latino Lawyers and Judges What do lawyers, judges, academics, activists, technologists and business leaders in Minnesota Passing of the Gavel Ceremony have in common? They will all be at the 2019 MSBA Convention engaging in a rich, 7:45 – 8:30 a.m. • Transformational Metaphors 1.0 elimination of bias credit applied for Paul Godfrey, MSBA President Madge S. Thorsen; Law Offices of Madge S. Thorsen; rewarding educational experience. Aleida O. Conners; Cargill, Inc.; Wayzata SUNRISE SESSIONS Tom Nelson, Incoming MSBA President Minneapolis Roger A. Maldonado; Faegre Baker Daniels LLP; This year’s convention combines thoughtful presentations on the legal profession Minneapolis and “critical conversations” about timely issues with important legal updates and • Cheers and Jeers: Expert Reviews of 12:45 – 1:15 p.m. • Restoring Waldmann, Saint Paul’s Oldest Marcos Ramirez; Nexum Legal; Saint Paul Legal Tech Products and Trends in 2019 German Lager House MODERATOR: Judge Peter M. Reyes provocative “ED TALKS”. State of the Judiciary Address Minnesota Court of Appeals; Saint Paul Joe Kaczrowski; Minnesota State Bar Association; Minneapolis Thomas S. Schroeder; Faegre Baker Daniels LLP; Chief Justice Lorie Skjerven Gildea Todd Scott; Minnesota Lawyers Mutual; Minneapolis Minneapolis Attendees will enjoy their choice of two sunrise sessions each day, plus lunch and the Minnesota Supreme Court; Saint Paul 402) How to Keep the Cabin in the Family President’s Reception, along with other fun activities. The MSBA Convention provides • How to Avoid 7 Common Legal Writing Mistakes * MSBA Assembly Meeting, continued J. Steve Nys; Fryberger, Buchanan, Smith & numerous opportunities to network with your colleagues in new ways. Frederick, P.A.; Duluth Karin Ciano; Karin Ciano Law PLLC; Saint Paul 1:30 – 2:30 p.m. Packed with stimulating presentations, numerous networking opportunities and BREAKOUT SESSION B 10:40 – 10:50 a.m. 5:00 – 6:00 p.m. special events, the MSBA Convention is an amazing opportunity to experience the 8:30 – 8:45 a.m. EXHIBITORS & NETWORKING BREAK 201) Minnesota State Bar Association at its best! ANNOUNCEMENTS Critical Conversation: Lawyer Safety in the PRESIDENT’S RECEPTION Law Office and the Courtroom Enjoy music, drinks and conversation with your colleagues! Daniel Adkins; North Star Criminal Defense; Saint Paul 10:50 – 11:50 a.m. 8:45 – 9:00 a.m. Sponsored by John Lillie III; Kelsey Law Office; Forest Lake R PRESIDENTIAL WELCOME & AWARDS Randy McAlister; Cottage Grove Police Department; BREAKOUT SESSION E Paul Godfrey; MSBA President Cottage Grove MODERATOR: Samuel J. Edmunds 501) Important Lessons from Recent Sieben Edmunds Miller PLLC; Mendota Heights FEATURED SPEAKERS 9:00 – 10:00 a.m. 6:00 – 7:00 p.m. Attorney Discipline Cases 1.0 ethics credit applied for Breaking Hate: A Journey Into and Out of 202) 2019 Minnesota Appellate Case Law Update BAGS TOURNAMENT – Justice G. Barry Anderson Susan M. Humiston; Office of Lawyers Professional America’s Most Violent Hate Movement Minnesota Supreme Court; Saint Paul Big Prizes, Big Fun! Responsibility; Saint Paul CHRISTIAN PICCIOLINI STEVE CROSSLAND Christian Picciolini; Free Radicals Project; Chicago, Illinois Justice Margaret H. Chutich Sponsored by the New Lawyers Section Minnesota Supreme Court; Saint Paul 502) Books about Bias and Diversity: Becoming Christian Picciolini is an American Steve Crossland is the Chief Judge Edward J. Cleary and The Loudest Duck: Moving Beyond Diversity Minnesota Court of Appeals; Saint Paul author and activist who is the co- Chair of Washington State’s 10:00 – 10:45 a.m. While Embracing Differences to Achieve Success founder of a nonprofit peace advocacy Limited License Legal Judge Kevin G. Ross ED TALKS Minnesota Court of Appeals; Saint Paul at Work organization called Life After Hate. He Technician Board. He also has MODERATOR: Justice David L. Lillehaug wrote two books: White American Youth a solo practice in Cashmere, Minnesota Supreme Court; Saint Paul 1.0 elimination of bias credit applied for and Romantic Violence: Memoirs of an Washington. • All Square: Civil Rights and Neon Lights FRIDAY, JUNE 28 Sarah Lynn Oquist; Sapientia Law Group; Minneapolis Athena Hollins; Minnesota State Bar Association; Minneapolis American Skinhead, which detail his Emily Hunt Turner; All Square Café; Minneapolis 203) The Top 10 Mistakes Lawyers Make When time as a leader of the American white Working with Scientific Evidence 7:30 – 8:30 a.m. 11:50 a.m. – 12:00 p.m. power movement and his journey out. • The Importance of Bonding Christine Funk; Attorney at Law; Saint Paul CONTINENTAL BREAKFAST CHIEF JUSTICE LORIE Mindy Mitnick; Uptown Mental Health Center; Minneapolis EXHIBITORS & NETWORKING BREAK SKJERVEN GILDEA 2:30 – 2:45 p.m. 7:45 – 8:30 a.m. Chief Justice Gildea has served 10:45 – 11:00 a.m. BOB CARLSON EXHIBITORS & NETWORKING BREAK as the Chief Justice of the EXHIBITORS & NETWORKING BREAK SUNRISE SESSIONS 12:00 – 1:00 p.m. Bob Carlson, a shareholder with Minnesota Supreme Court BREAKOUT SESSION F the Butte, Montana, law firm of since 2010. Prior to that she • How to Avoid Getting Caught in the 2:45 – 3:45 p.m. Corette Black Carlson & Mickelson, served as an associate justice Dark Web 11:00 a.m. – 12:00 p.m. 601) The Intersection of Ethics, P.C., is president of the American from 2006 to 2010 and as a BREAKOUT SESSION C Mark Lanterman; Computer Forensic Services; Minnetonka Bar Association, the world’s largest district judge in the Fourth BREAKOUT SESSION A Inclusion, and Professionalism: voluntary professional organization Judicial District from 2005 to 301) Critical Conversation: • Marketing a Small-Town Legal Practice The New Model Rule 8.4(g) 101) with more than 400,000 members. 2006. Critical Conversation: Lawyer Well-Being in The Future of Legal Representation Vincent Stevens; Miller & Stevens Law; Forest Lake 1.0 ethics credit applied for Minnesota and Nationally in MN – LLLTs and More Kristine Kubes; Kubes Law Office PLLC; Minneapolis Bob Carlson; Corette Black Carlson & Mickelson, P.C.; Mary Schwind; Kubes Law Office PLLC; Minneapolis Steve Crossland; Washington State Limited License Legal Butte, Montana Technician Board Chair; Cashmere, Washington 8:30 – 9:30 a.m. Ivan Fong; 3M; Saint Paul 602) Sam Glover; Lawyerist.com; Minneapolis The Complete Lawyer: Quick Answers to Justice David L. Lillehaug; Minnesota Supreme Court; Judge John R. Rodenberg; Minnesota Court of Appeals; ED TALKS Saint Paul Questions Across 4 Practice Areas Special Thanks to Convention Sponsors Saint Paul MODERATOR: Joan Bibelhausen MODERATOR: Eric T. Cooperstein Lawyers Concerned for Lawyers; Saint Paul • On Becoming a Judge: Things to INTELLECTUAL PROPERTY LAW Law Office of Eric T. Cooperstein; Minneapolis James L. Young; Westman, Champlin & Koehler; Consider Before You Apply, When You Apply, Minneapolis 102) 2019 U.S. Supreme Court Update PLATINUM 302) Ethics Issues for Retiring Lawyers and If You Get an Interview Aaron D. Van Oort; Faegre Baker Daniels LLP; Minneapolis EMPLOYMENT LAW 1.0 ethics credit applied for Lola A. Velazquez-Aguilu; Medtronic, Inc.; Fridley SPONSOR Nicholas J. Nelson; Faegre Baker Daniels LLP; Minneapolis Leonard B. Segal; SeilerSchindel, PLLC; Minneapolis R Reception Paul M. Floyd; Wallen-Friedman & Floyd, P.A.; Minneapolis • How to Have a More Dementia-Friendly Law FAMILY LAW 103) How to Protect Children from Online sponsor Jack Setterlund; Duluth; Minnesota Practice R. Leigh Frost; R. Leigh Frost Law, Ltd.; Minneapolis Binh T. Tuong; Office of Lawyers Professional Recruitment by Hate Groups Jean M. Gustafson; Attorney at Law; Brainerd Christian Picciolini; Free Radicals Project; Chicago, Illinois Responsibility; Saint Paul WORKERS’ COMPENSATION LAW MODERATOR: Roy S. Ginsburg Kathryn Hipp Carlson; Hipp Carlson Law PLLC; Long Lake Attorney at Law; Minneapolis • Courageous Connections: GOLD SILVER Every Heart Matters 12:00 – 1:30 p.m. 1:00 p.m. SPONSOR SPONSOR * MSBA Assembly Meeting Kelly D. Holstine; 2018 Minnesota Teacher of the Year; CONVENTION LUNCHEON Shakopee Public Schools; Shakopee ADJOURN Day 1 Lunch Lanyard sponsor sponsor 3:45 – 4:00 p.m. 9:30 – 9:40 a.m. EXHIBITORS & NETWORKING BREAK EXHIBITORS & NETWORKING BREAK Sponsorship opportunities are still available. Call Katie Ward at 651-227-8266 for details.
May.June.Convention.indd 1 4/17/2019 10:33:07 AM Only 2019 MSBA CONVENTION $125 June 27 & 28, 2019 • Mystic Lake Center • www.msbaconvention.org for MSBA Members EXPERIENCE THE BEST 12:15 – 12:30 p.m. 4:00 – 5:00 p.m. 9:40 – 10:40 a.m. THURSDAY, JUNE 27 Remarks by American Bar Association President ED TALKS BREAKOUT SESSION D OF THE BAR Bob Carlson 7:30 – 8:30 a.m. • Making the Case for Sleep 401) Someone Like Me Can Do This – CHECK-IN & CONTINENTAL BREAKFAST 12:30 – 12:45 p.m. Dr. John Parker; Sleep Performance Institute; Minneapolis Stories of Latino Lawyers and Judges What do lawyers, judges, academics, activists, technologists and business leaders in Minnesota Passing of the Gavel Ceremony have in common? They will all be at the 2019 MSBA Convention engaging in a rich, 7:45 – 8:30 a.m. • Transformational Metaphors 1.0 elimination of bias credit applied for Paul Godfrey, MSBA President Madge S. Thorsen; Law Offices of Madge S. Thorsen; rewarding educational experience. Aleida O. Conners; Cargill, Inc.; Wayzata SUNRISE SESSIONS Tom Nelson, Incoming MSBA President Minneapolis Roger A. Maldonado; Faegre Baker Daniels LLP; This year’s convention combines thoughtful presentations on the legal profession Minneapolis and “critical conversations” about timely issues with important legal updates and • Cheers and Jeers: Expert Reviews of 12:45 – 1:15 p.m. • Restoring Waldmann, Saint Paul’s Oldest Marcos Ramirez; Nexum Legal; Saint Paul Legal Tech Products and Trends in 2019 German Lager House MODERATOR: Judge Peter M. Reyes provocative “ED TALKS”. State of the Judiciary Address Minnesota Court of Appeals; Saint Paul Joe Kaczrowski; Minnesota State Bar Association; Minneapolis Thomas S. Schroeder; Faegre Baker Daniels LLP; Chief Justice Lorie Skjerven Gildea Todd Scott; Minnesota Lawyers Mutual; Minneapolis Minneapolis Attendees will enjoy their choice of two sunrise sessions each day, plus lunch and the Minnesota Supreme Court; Saint Paul 402) How to Keep the Cabin in the Family President’s Reception, along with other fun activities. The MSBA Convention provides • How to Avoid 7 Common Legal Writing Mistakes * MSBA Assembly Meeting, continued J. Steve Nys; Fryberger, Buchanan, Smith & numerous opportunities to network with your colleagues in new ways. Frederick, P.A.; Duluth Karin Ciano; Karin Ciano Law PLLC; Saint Paul 1:30 – 2:30 p.m. Packed with stimulating presentations, numerous networking opportunities and BREAKOUT SESSION B 10:40 – 10:50 a.m. 5:00 – 6:00 p.m. special events, the MSBA Convention is an amazing opportunity to experience the 8:30 – 8:45 a.m. EXHIBITORS & NETWORKING BREAK 201) Minnesota State Bar Association at its best! ANNOUNCEMENTS Critical Conversation: Lawyer Safety in the PRESIDENT’S RECEPTION Law Office and the Courtroom Enjoy music, drinks and conversation with your colleagues! Daniel Adkins; North Star Criminal Defense; Saint Paul 10:50 – 11:50 a.m. 8:45 – 9:00 a.m. Sponsored by John Lillie III; Kelsey Law Office; Forest Lake R PRESIDENTIAL WELCOME & AWARDS Randy McAlister; Cottage Grove Police Department; BREAKOUT SESSION E Paul Godfrey; MSBA President Cottage Grove MODERATOR: Samuel J. Edmunds 501) Important Lessons from Recent Sieben Edmunds Miller PLLC; Mendota Heights FEATURED SPEAKERS 9:00 – 10:00 a.m. 6:00 – 7:00 p.m. Attorney Discipline Cases 1.0 ethics credit applied for Breaking Hate: A Journey Into and Out of 202) 2019 Minnesota Appellate Case Law Update BAGS TOURNAMENT – Justice G. Barry Anderson Susan M. Humiston; Office of Lawyers Professional America’s Most Violent Hate Movement Minnesota Supreme Court; Saint Paul Big Prizes, Big Fun! Responsibility; Saint Paul CHRISTIAN PICCIOLINI STEVE CROSSLAND Christian Picciolini; Free Radicals Project; Chicago, Illinois Justice Margaret H. Chutich Sponsored by the New Lawyers Section Minnesota Supreme Court; Saint Paul 502) Books about Bias and Diversity: Becoming Christian Picciolini is an American Steve Crossland is the Chief Judge Edward J. Cleary and The Loudest Duck: Moving Beyond Diversity Minnesota Court of Appeals; Saint Paul author and activist who is the co- Chair of Washington State’s 10:00 – 10:45 a.m. While Embracing Differences to Achieve Success founder of a nonprofit peace advocacy Limited License Legal Judge Kevin G. Ross ED TALKS Minnesota Court of Appeals; Saint Paul at Work organization called Life After Hate. He Technician Board. He also has MODERATOR: Justice David L. Lillehaug wrote two books: White American Youth a solo practice in Cashmere, Minnesota Supreme Court; Saint Paul 1.0 elimination of bias credit applied for and Romantic Violence: Memoirs of an Washington. • All Square: Civil Rights and Neon Lights FRIDAY, JUNE 28 Sarah Lynn Oquist; Sapientia Law Group; Minneapolis Athena Hollins; Minnesota State Bar Association; Minneapolis American Skinhead, which detail his Emily Hunt Turner; All Square Café; Minneapolis 203) The Top 10 Mistakes Lawyers Make When time as a leader of the American white Working with Scientific Evidence 7:30 – 8:30 a.m. 11:50 a.m. – 12:00 p.m. power movement and his journey out. • The Importance of Bonding Christine Funk; Attorney at Law; Saint Paul CONTINENTAL BREAKFAST CHIEF JUSTICE LORIE Mindy Mitnick; Uptown Mental Health Center; Minneapolis EXHIBITORS & NETWORKING BREAK SKJERVEN GILDEA 2:30 – 2:45 p.m. 7:45 – 8:30 a.m. Chief Justice Gildea has served 10:45 – 11:00 a.m. BOB CARLSON EXHIBITORS & NETWORKING BREAK as the Chief Justice of the EXHIBITORS & NETWORKING BREAK SUNRISE SESSIONS 12:00 – 1:00 p.m. Bob Carlson, a shareholder with Minnesota Supreme Court BREAKOUT SESSION F the Butte, Montana, law firm of since 2010. Prior to that she • How to Avoid Getting Caught in the 2:45 – 3:45 p.m. Corette Black Carlson & Mickelson, served as an associate justice Dark Web 11:00 a.m. – 12:00 p.m. 601) The Intersection of Ethics, P.C., is president of the American from 2006 to 2010 and as a BREAKOUT SESSION C Mark Lanterman; Computer Forensic Services; Minnetonka Bar Association, the world’s largest district judge in the Fourth BREAKOUT SESSION A Inclusion, and Professionalism: voluntary professional organization Judicial District from 2005 to 301) Critical Conversation: • Marketing a Small-Town Legal Practice The New Model Rule 8.4(g) 101) with more than 400,000 members. 2006. Critical Conversation: Lawyer Well-Being in The Future of Legal Representation Vincent Stevens; Miller & Stevens Law; Forest Lake 1.0 ethics credit applied for Minnesota and Nationally in MN – LLLTs and More Kristine Kubes; Kubes Law Office PLLC; Minneapolis Bob Carlson; Corette Black Carlson & Mickelson, P.C.; Mary Schwind; Kubes Law Office PLLC; Minneapolis Steve Crossland; Washington State Limited License Legal Butte, Montana Technician Board Chair; Cashmere, Washington 8:30 – 9:30 a.m. Ivan Fong; 3M; Saint Paul 602) Sam Glover; Lawyerist.com; Minneapolis The Complete Lawyer: Quick Answers to Justice David L. Lillehaug; Minnesota Supreme Court; Judge John R. Rodenberg; Minnesota Court of Appeals; ED TALKS Saint Paul Questions Across 4 Practice Areas Special Thanks to Convention Sponsors Saint Paul MODERATOR: Joan Bibelhausen MODERATOR: Eric T. Cooperstein Lawyers Concerned for Lawyers; Saint Paul • On Becoming a Judge: Things to INTELLECTUAL PROPERTY LAW Law Office of Eric T. Cooperstein; Minneapolis James L. Young; Westman, Champlin & Koehler; Consider Before You Apply, When You Apply, Minneapolis 102) 2019 U.S. Supreme Court Update PLATINUM 302) Ethics Issues for Retiring Lawyers and If You Get an Interview Aaron D. Van Oort; Faegre Baker Daniels LLP; Minneapolis EMPLOYMENT LAW 1.0 ethics credit applied for Lola A. Velazquez-Aguilu; Medtronic, Inc.; Fridley SPONSOR Nicholas J. Nelson; Faegre Baker Daniels LLP; Minneapolis Leonard B. Segal; SeilerSchindel, PLLC; Minneapolis R Reception Paul M. Floyd; Wallen-Friedman & Floyd, P.A.; Minneapolis • How to Have a More Dementia-Friendly Law FAMILY LAW 103) How to Protect Children from Online sponsor Jack Setterlund; Duluth; Minnesota Practice R. Leigh Frost; R. Leigh Frost Law, Ltd.; Minneapolis Binh T. Tuong; Office of Lawyers Professional Recruitment by Hate Groups Jean M. Gustafson; Attorney at Law; Brainerd Christian Picciolini; Free Radicals Project; Chicago, Illinois Responsibility; Saint Paul WORKERS’ COMPENSATION LAW MODERATOR: Roy S. Ginsburg Kathryn Hipp Carlson; Hipp Carlson Law PLLC; Long Lake Attorney at Law; Minneapolis • Courageous Connections: GOLD SILVER Every Heart Matters 12:00 – 1:30 p.m. 1:00 p.m. SPONSOR SPONSOR * MSBA Assembly Meeting Kelly D. Holstine; 2018 Minnesota Teacher of the Year; CONVENTION LUNCHEON Shakopee Public Schools; Shakopee ADJOURN Day 1 Lunch Lanyard sponsor sponsor 3:45 – 4:00 p.m. 9:30 – 9:40 a.m. EXHIBITORS & NETWORKING BREAK EXHIBITORS & NETWORKING BREAK Sponsorship opportunities are still available. Call Katie Ward at 651-227-8266 for details.
May.June.Convention.indd 1 4/17/2019 10:33:07 AM OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVI NUMBER V MAY/JUNE 2019 www.mnbar.org
FEATURES 5 President’s Page It was a very good year By Paul Godfrey
16 6 MSBA in Action MORE THAN A RULE OF THUMB Welcome, new lawyers! Your smartphone and the 5th Amendment By Adam T. Johnson 8 Professional Responsibility Business transactions with clients By Susan Humiston
ON THE COVER 10 Law & Technology 22 “Papers and effects” THE GUNS AREN’T ILLEGAL. in a digital age, pt II By Mark Lanterman and BUT SOMETIMES THE OWNERS ARE. Judge James Rosenbaum Understanding Minnesota’s private-transfer exception suggests the best path to reducing 12 New Lawyers gun violence Eminent Domain: By Aaron Edward Brown Damages to contiguous tracts in Minnesota By Benjamin Tozer 27 LESSOR BEWARE Courts are increasingly willing to hold commercial landlords liable for their tenants’ trademark infringement By Bryan Huntington 14 Colleague Corner ‘Never forget where you came from’ meet Jessie Nicholson
35 Notes & Trends 30 Landmarks in the law DON’T BE THE NEXT LUNDS & BYERLYS 50 People & Practice Lessons learned from the Lunds Member announcements shareholder litigation By Janel Dressen 52 Opportunity Market Classified ads
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© 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 Digital Evidence Specialists mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN • Expert Witness Testimony that jurors will understand 55402-1641. Subscription price: $25.00 for members which is • Preservation, Analysis & Presentation of Electronic Evidence included in dues. Nonmembers $35.00 per year. Some back issues available at $5.00 each. Editorial Policy: The opinions expressed • Liaison with Law Enforcement in Bench & Bar are those of the authors and do not necessarily • Incident Response reflect association policy or editorial concurrence. Publication of advertisements does not constitute an endorsement. The editors • Complementary CLE Training reserve the right to accept or reject prospective advertisements in accordance with their editorial judgment. 601 Carlson Parkway, Suite 1250 WE’D LIKE TO HEAR FROM YOU: To query potential articles for Minnetonka, MN 55305 Bench & Bar, or to pass along your comments on matters related (952) 924-9920 to the profession, the MSBA, or this magazine, write to editor Steve Perry at [email protected] or at the postal address above. www.compforensics.com • [email protected] www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 3 LAWPAY IS FIVE STAR!
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LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Citizens Bank, N.A., Providence, RI. President’sPage | BY PAUL GODFREY
It was a very good year
uring the years leading up to my time as president of the MSBA, several people asked me to describe my plan for the year.D Since I wasn’t sure, and, because I knew from talking to past presidents that any plan can be derailed by events, I told them I needed to wait and see. As my term approached, events dictated my plan. Tim Groshens announced his retirement and we had made a decision to have One Profession conferences 2018 in every judicial district in greater – Minnesota. Hence the plan: Hire a new executive director and implement the 2019 One Profession program. I am excited to report we were able to accomplish both goals.
Achieving greater efficiencies As our executive director, Tim Groshens did an excellent job of taking times in summer and fall of 2018. All The program is aptly named. Lawyers us from the era of paper billing to online three boards approved Cheryl Dalby as and judges are all part of one profession. dues payments. He also helped lead the the new leader of the combined staff in These meetings have been an oppor- discussions about merging the staffs of November 2018. Cheryl started her new tunity for lawyers and judges in each the HCBA, the RCBA, and the MSBA. role as chief executive officer on January judicial district to come together and In early 2018 all three boards agreed on 2, 2019. She is already making strides discuss issues facing the district. Every a plan to merge staffs. Tim’s retirement to make sure our members are served as meeting has included presentations by provided an excellent opportunity to efficiently as possible. the Supreme Court and the Court of find a new executive director to lead the For example, the communications Appeals. They also include a state of the merged staff. I am staffs from all three organizations are district presentation by the chief judge happy to report now one team. They are all able to or a panel discussion of issues facing that all three specialize in what they do best, whether the court. At every meeting there was bar associations it be writing, photography, graphic time for questions and answers. This is collaborated design, or social media. Rather than how the bench and bar collaborate: We to make this having three groups communicating with get together, discuss issues, and look for process work three separate but overlapping groups, solutions. The attendance at these meet- smoothly. We we have one team getting the messages ings has been fantastic. I am proud that formed a Joint out to the right audiences. we were able to bring these meetings to Coordinating our members. PAUL GODFREY is the Committee Bringing together The MSBA is doing good things for Managing Attorney to decide the legal professionals our profession. Much of what we do for the Twin Cities scope of the The other goal for the year was to depends on strong support from our staff. Branch Legal Office search, choose a serve our members as a convener. We I want to publicly thank the staffs from for Farmers Insurance. search firm, and have a statewide reach, so we are well all three organizations. They continued He is a trial attorney. determine the positioned to address issues that face the to produce quality work during times of He has tried more hiring timeline. entire bar. Through the One Profession uncertainty and have worked together than 40 cases to jury The committee program we were able hold day-long on the staff merger. verdict, with issues was made up meetings in six of the eight judicial I also want to thank everyone for the ranging from claims for of three mem- districts in greater Minnesota during my opportunity to serve as president of the whiplash to claims for bers from each year as president. The other two meet- MSBA. It has been a wonderful opportu- wrongful death. association. We ings are scheduled to take place early in nity to work with talented staff and attor- met multiple Tom Nelson’s term. neys to make our justice system better. s www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 5 MSBAinAction Welcome, new lawyers! ongratulations to the director of MBLE, introduced 75 new lawyers granted the new lawyers to the Court, Cadmission to the Chief Justice Gildea admin- Minnesota bar during a series istered the oath, and MSBA of swearing-in ceremonies President Paul Godfrey wel- held in the Supreme Court comed them to the Minnesota Chambers at the Minnesota legal community. State Capitol Building on May Chief Justice Gildea— 10. Chief Justice Lorie Gildea who initiated a return of the presided over the four morn- admissions ceremony to the ing sessions and was joined on Supreme Court Chambers in a the bench by Justice G. Barry trial run last spring—welcomed Anderson, Justice David Lille- the new admittees to “one of haug, Justice Natalie Hudson, the most beautiful rooms, in Justice Anne McKeig, and Justice Paul Thissen. one of the most beautiful buildings, in the country.” (For many The ceremony featured an address by Justice Hudson, who years, the swearing-in ceremonies had been held at St. Paul’s recounted her own experience as a newly admitted lawyer RiverCentre.) Chief Justice Gildea also reinstated the signing of helping a pro se petitioner, and the gravity she felt with that the Minnesota attorneys roll book as a part of the new lawyers’ new responsibility. John Koneck, board member of the Min- admission experience. This practice dates back to 1858, the nesota Board of Law Examiners (MBLE), and Emily Eschweiler, year that Minnesota gained statehood.
Court rules on MSBA petition to amend MRPC n May 3, the Minnesota Supreme Court issued an order in response to an MSBA petition proposing amend- Oments to rules 1.6 and 5.5 of the Minnesota Rules of Professional Conduct. The Court rejected a proposed amend- ment to Rule 1.6 that would have permitted lawyers to disclose limited confidential client information to respond to a client’s public criticism of the lawyer if the client had first disclosed confidential information. The Court stated the proposed change could have unforeseen effects on the lawyer-client relationship. The Court accepted a proposed amendment to Rule 5.5(d) to permit a non-Minnesota lawyer to continuously practice in Minnesota the law of a jurisdiction in which the lawyer is admitted, provided that lawyer notifies clients that the lawyer 2019 Becker Award is not admitted to practice Minnesota law. The Court reasoned that this is a logical extension of the current Rule 5.5 exemp- winners announced tion permitting a non-Minnesota lawyer to practice in other limited areas of non-Minnesota law. he Access to Justice Committee has conferred its The Court amended Rule 5.5(c)(3) to permit a non-Min- annual Bernard P. Becker honors for outstanding nesota lawyer to provide legal services in Minnesota that are Tlegal work for low-income clients. The awards were reasonably related to the lawyer’s recognized expertise in an presented at the MSBA Assembly to five honorees; the area of law developed through regular practice in a jurisdiction committee recommended two recipients for the Legacy of in which the lawyer is lawfully admitted. Excellence because the strength of the nominations in this Finally, the Court agreed with a proposed amendment to category made it impossible to select just one winner. Rule 5.5(c)(3) permitting a non-Minnesota lawyer to provide n A dvocate: Georgia Sherman, Southern Minnesota representation in Minnesota to a family member. The Court Regional Legal Services recognized that this change responds to the Court’s invitation n Emerging Leader: Jocylyn Poehler, Southern Minnesota to the MSBA in In Re Panel File No. 49402, 884 N.W.2d 661 Regional Legal Services (Minn. 2016) to suggest amendments to the rule if the bar felt n Legacy of Excellence: Steve Wolfe, Southern Minnesota that the court’s ruling in that case unnecessarily affected the Regional Legal Services ability of lawyers to meet client needs. But the Court rejected n Legacy of Excellence: Michele Garnett McKenzie, language that would have extended the exemption to close Advocates for Human Rights personal friends and existing clients. n Law Student: Kim Boche, University of St. Thomas
6 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Affordable employer-provided health insurance, anyone? aw firms of all sizes face significant challenges in providing affordable Lhealth insurance for their employees. And we have heard from MSBA members that there is a growing interest in exploring possible solutions by pooling together the purchasing power of MSBA employers and their employees to obtain affordable health insurance coverage. Developing an association health plan (AHP) will allow smaller A delegation of five MSBA officers and former officers attended ABA Day 2019 in Washington D.C. employers to obtain coverage on terms to advocate for funding of Legal Services Corporation and the Public Service Loan Forgiveness similar to those currently available only program. Shown here with Representative Tom Emmer, who is a strong advocate for Legal Services to large employers. Corporation, are President-Elect Tom Nelson, President Paul Godfrey, and Judge Cara Lee Neville. The MSBA has engaged with Mercer, a national employee benefit consulting firm with a division that focuses exclu- sively on offering association benefit programs. The first step in this venture is to collect information about you and your employees that will be used exclu- sively for obtaining a competitive health care and benefits program from select insurance carriers and evaluating the feasibility of an AHP offering. Providing this information does not obligate you or your organization to participate in any eventual AHP sponsored by the MSBA. A comprehensive response from you and your peers will help the MSBA obtain the most competitive offering possible while accurately gauging the possibility of offering an AHP. To help in this process, please visit https://census.mercer.com/msba/ as soon as you can. Our data collection effort will end June 30, 2019. The URL has complete instructions on providing the information, and the process should take you no more than 10 minutes. You will be required to enter the Association ID of MSBA1234 and your Membership ID. If you do not have a Membership ID, or it is not readily available, you can enter the Association ID in the field instead. If you have questions regarding the sub- mission of data using the Mercer Data collection tool, please contact Mercer's Help Desk at MercerMarketplace365+Cu [email protected]. www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 7 ProfessionalResponsibility | BY SUSAN HUMISTON
Business transactions with clients
awyers frequently have an oppor- A lawyer shall not enter into a business What does compliance look like? tunity to do business with clients transaction with a client or knowingly First, remember Rule 1.8(a) is beyond the straightforward mon- acquire an ownership, possessory, conjunctive—all three prongs must etary payment for legal services security or other pecuniary interest be satisfied. Second, note that each rendered.L Sometimes clients wish to offer adverse to a client unless: prong contains additional requirements. their lawyer an ownership interest in a Specifically, Rule 1.8(a)(1) requires that start-up business as payment for some (1 ) the transaction and terms the terms of the transaction be (i) “fair or all of the legal services provided, or on which the lawyer acquires the and reasonable,” and (ii) requires that lawyers wish to acquire an interest in interest are fair and reasonable to the terms be disclosed in writing and (iii) property owned by the client to secure the client and are fully disclosed disclosed in a manner that can be reason- payment for future legal fees. Sometimes and transmitted in writing in a ably understood by the client. Accord- a client would like to partner with their manner that can be reasonably ingly, depending on the sophistication lawyer to pursue a new business opportu- understood by the client; level of your client, the written agree- nity, or sometimes a client simply cannot (2) the client is advised in ment effectuating the transaction may pay a bill and wishes to trade property writing of the desirability of need to be separately summarized in an the client owns or barter professional seeking and is given a reasonable understandable manner. You should also services for payment. Each of these situ- opportunity to seek the advice of spend time establishing for yourself how ations is permissible, but all present a independent legal counsel on the the terms are “fair and reasonable” to the potential concurrent conflict of interest transaction; and client. What factors are available to show with a client. How to ethically navigate (3) the client gives informed the current value of the transaction? If these conflicts is specifically regulated by consent, in a document signed the transaction is in lieu of payment of professional responsibility rules. by the client separate from the fees, how is the value “reasonable” in transaction documents, to the es- light of Rule 1.5(a), which requires that The rules sential terms of the transaction and lawyers charge fees that are reasonable Rule 1.8, the lawyer’s role in the transac- under the circumstances? As with much Minnesota Rules tion, including whether the lawyer in the law, what these elements look like of Professional is representing the client in the will depend on the particular facts and Conduct, is help- transaction.1 circumstances presented. fully entitled The second prong, Rule 1.8(a)(2), “Conflicts of As written, the rule is expansive in contains two requirements: The client Interest: Current its application, and applies to everything is advised in writing of the desirability of Clients: Specific except standard commercial transactions seeking counsel and the client is given SUSAN HUMISTON Rules.” There are with clients of the kind and on the same a reasonable opportunity to obtain is the director of the 11 main subparts terms as the client markets to the public, such advice. Again, what is reasonable Office of Lawyers to Rule 1.8 that and ordinary fee arrangements between will depend on the particular facts and Professional cover a gamut a client and lawyer, including applying circumstances. Requiring the client to Responsibility and of situations whenever a “lawyer accepts an interest execute the documents on the same Client Securities from business in the client’s business or other nonmon- day they are given to the client, or Board. She has transactions with etary property as payment for all or a shortly thereafter, is likely unreasonable. more than 20 clients to finan- part of a fee.”2 Providing the client with several weeks years of litigation cial assistance to The requirements of the rule are to seek separate counsel and to consult experience, as well clients to sex with strictly enforced from a disciplinary per- with same is likely reasonable. as a strong ethics clients (expressly spective but more importantly, lawyers The third prong, Rule 1.8(a)(3), in- and compliance prohibited unless should view them as important risk man- corporates one of the most important as- background. Prior that relationship agement tools. Because of the trust and pects of conflict law—informed consent. to her appointment, predated the confidence that clients place in counsel, Rule 1.0(f) defines “informed consent” as Susan worked in- lawyer-client re- business transactions with clients can an “agreement by a person to a proposed house at a publicly lationship). Let’s be easy targets for claims of overreach- course of conduct after the lawyer has traded company, and start with the ing and breach of fiduciary duty. Taking communicated adequate information in private practice as main rule on busi- pains to comply with the requirements of and explanation about the material risks a litigation attorney. ness transactions: the rule provides an effective counter to of and reasonably available alternative to Rule 1.8(a): such claims. the proposed course of conduct.”3
8 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org In addition, the informed consent must have a contingency fee agreement on ethically do business with your client, be in a document separate from the trans- damages arising from a patent infringe- 651-296-2963 or 1-800-657-3601. s action, must be signed by the client, must ment case, you cannot acquire an owner- discuss the essential terms of the transac- ship interest in the patent that is the Notes tion, and must disclose the lawyer’s role subject of the infringement case. 1 Rule 1.8(a), MRPC. in the transaction vis-à-vis the client. 2 Rule 1.8, MRPC, Comment [1]. Remember, it is generally insufficient Conclusion 3 Rule 1.0(f), MRPC. just to use the words “informed consent.” Clients often look to us as trusted 4 Rule 1.8(b), MRPC. Rather, as the definition states, you must business advisors in addition to legal 5 Rule 1.8(c), MRPC. give your client information about the advisors, and it may make perfect sense 6 Rule 1.8(k), MRPC, “While lawyers are asso- material risks and alternatives available to do business with clients. Before ciated in a firm, a prohibition in the foregoing in order for the consent to the transac- engaging in business with a client (be- paragraphs (a) through (i) that applies to any tion to actually be informed. Think about yond standard commercial transactions one of them shall apply to all of them.” this from your client’s perspective—if with your client of the kind your client 7 Rule 1.8(e), MRPC. someone asks them, “What were the risks markets to the general public),9 however, 8 Rule 1.8(i), MRPC. of the transaction,” what do you think please review the rules so that you are 9 See Rule 1.8, MRPC, Comment [1], excluding they will say? What about, “What were familiar with the conflicts of interest that from Rule 1.8(a) “standard commercial trans- the alternatives available to you?” Having such transactions create, the specific actions between the lawyer and the client for a written document that sets forth this steps needed to address those conflicts, products or services that the client generally information, signed by the client, demon- and times when there is a per se prohibi- markets to others, for example, banking or strates compliance with the rule and is a tion on the type of transaction you are brokerage services, medical services, products good risk management strategy. contemplating. As always, you can call manufactured or distributed by the client, and our ethics hotline for advice on how to utilities services.” Other things to keep in mind In addition to the black-letter law required to do business with clients, Rule 1.8 contains a lot of other rules on spe- WHEN COURAGE MEETS EXPERTISE. cific client conflicts, such as specific re- Helping whistleblowers navigate their options. strictions that usually cannot be papered over, including that a “lawyer shall not use information relating to representa- tion of a client to the disadvantage of the client unless the client gives informed consent.”4 This rule generally prohibits lawyers from usurping client opportuni- ties. Lawyers cannot draft an instrument that gives the lawyer or a member of the lawyer’s family a substantial gift unless I have learned valuable the lawyer is related to the donee.5 truths over time. This rule would, for example, prohibit a lawyer from drafting sale documents Integrity transcends power, for a below-market transaction with a and justice can prevail. client meant as a gift to the lawyer for exceptional services. While a lawyer can I am proud to represent qui accept a gift from a client, neither the tam whistleblowers across the lawyer, nor the lawyer’s law firm, can United States. draft the transaction documents.6 Law- yers cannot provide financial assistance to clients in connection with pending or contemplated litigation except in lim- 7 ited, specified circumstances. This pro- Susan M. Coler, Partner hibition applies to loan advances against Chair, Qui Tam Whistleblower Practice Group settlement proceeds. Further, lawyers Selected to the 2018 Minnesota Super Lawyers List cannot acquire a proprietary interest in the cause of action or subject matter of the litigation, except by statutory lien or reasonable contingency fee agreement.8 Accordingly, for example, while you can www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 9 Law&Technology | BY MARK LANTERMAN & JUDGE JAMES ROSENBAUM “Papers and effects” in a digital age, pt II
odern information technologies are testing the the seizure of a cellphone. Instead the Court found that, in United States Constitution’s protection against considering digital devices, “a search of digital information on a government intrusion. In our article “‘Papers and cellphone… implicates substantially greater individual privacy effects’ in a digital age,” published here in January interests than a brief physical search[.]” 2019,M we looked at the impact of smartphones and the chal- lenges they pose for search warrants and government investiga- tors. We concluded that as our technological landscape rapidly The law is properly recognizing that expands and evolves, so too do courts need to adjust to main- tain the degree of privacy afforded by the 4th Amendment. our digital world requires a new level of Our digital age has forced courts to reevaluate the balance between privacy concerns and the government’s legitimate in- warrant specificity. terests when digital devices are seized during investigations. Just as the founders sought to bar Britain’s writs of assistance and The Court further held that the threat of evidence the Crown’s ability to indiscriminately search private homes or destruction, either by remote wiping or encryption, was offices, we again face the need to establish acceptable boundar- not substantial enough to merit a warrantless search. Many ies for warrant-authorized searches. Modern digital telephones investigators argue that warrants hold up investigations, and electronic devices regularly contain vast amounts of their making it difficult if not impossible to properly examine digital owners’ personal information. This new reality means that gov- evidence. However, investigators can take immediate action ernment investigators must have carefully defined limits when to secure digital devices for future analysis, including turning they seek to review these items or locate electronically stored off the devices and using Faraday bags, which help to protect evidence. Courts are responding to these concerns. against the threat of remote tampering.
Case in point: Riley v. California A unique information source In 2014, the United States Supreme Court considered the Even the most basic smartphone has significant storage capac- case Riley v. California (573 U.S. __ (2014)). Mr. Riley had been ity and often holds information spanning the course of several arrested for a traffic violation. His cellphone was seized incident years. Cloud computing and the existence of data stored on re- to the arrest. Police officers, without a warrant, examined infor- mote servers that can be easily accessed via smartphones further mation stored on the phone; they discovered photos and videos complicates the search process, since the accessible data techni- that suggested gang involvement. This stored information led cally extends beyond the physical confines of the phone itself. to Riley’s being charged in connection with a shooting that In spite of these issues, the Court emphasized that “the occurred weeks earlier. He challenged Court’s holding is not that the information on a cellphone is the digital search, raising the question of immune from search; it is that a warrant is generally required what investigators are allowed to search before a search[.]” The nature of our digital world justifies the on digital evidence. The lower courts need for warrant specificity. found that the digital search incident to The law is properly recognizing that our digital world Riley’s arrest allowed the evidence. requires a new level of warrant specificity. For the majority of The Supreme Court reversed. It Americans, these devices contain private details about almost recognized that, historically, officers every, if not every, aspect of our lives. The fact that technol- were permitted to examine objects seized ogy now enables an individual to carry such information in his MARK LANTERMAN incident to a lawful arrest. But in 2014, hand does not make the information any less worthy of the is CTO of Computer the Supreme Court held that a modern protection for which the founders fought. Our answer to the Forensic Services. digital phone was not just another ob- question of what police must do before searching a cellphone A former member ject; its ability to store vast amounts of seized incident to an arrest is accordingly simple—specify what of the U.S. Secret data called for a deeper consideration of you are searching for and get a warrant. Service Electronic the effect of its seizure. In today’s tech- The Supreme Court’s emphasis on the need for a warrant Crimes Taskforce, nological landscape, the average person should not unduly impede the competent investigator. Any is- Mark has 28 years stores a huge amount of data about their sues posed by needing to wait to obtain a warrant can be readily of security/forensic daily lives. This reality is unprecedented; mitigated. Indeed, the same kinds of electronic access can be experience and even in the rare event that an officer used to obtain warrants electronically. Many states and fed- has testified in over found a personal diary on a person eral procedures provide for electronic warrant application and 2,000 matters. He is incident to an arrest, that diary would authorization. This is an area where the law is fast developing, a member of the MN contain a limited amount of informa- as the courts apply timeless principles to evolving situations. As Lawyers Professional tion. The Court set aside issues of officer illustrated by the Riley case, digital devices have vastly expanded Responsibility Board. safety or evidence destruction, neither the scope of information which may be available in seized of which was materially implicated in objects. The law is beginning to consider these new factors. s
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Eminent Domain Damages to contiguous tracts in Minnesota
minent domain is an “awesome” power: the ability In December 2017, the court of appeals ruled, in County of of the state, or its delegates, to take an individual’s Anoka v. Ramsey-Arbor Properties, LLC,7 on an issue related to Eproperty without that individual’s consent.1 Under the the so-called “larger parcel” test. Anoka County acquired a United States and Minnesota Constitutions, that “awesome” portion of land known in the court proceedings as Parcel 20. power comes with a corresponding responsibility: to pay “just The landowner owned Parcel 20 along with a contiguous tract compensation” to the owner of the property.2 In cases where adjoining the eastern boundary of Parcel 20, known in the not all of an owner’s property is acquired, just compensation proceedings as Tract A. includes compensation not just for the property taken, but also lost value to the owner’s remaining land—an element of damages known as severance damages.3 To this end, Minnesota follows the “before” and “after” rule, comparing the value of the property before the taking with the value after the taking in order to determine the property compensation.4 Often, a property owner or investor will hold contiguous properties in different single-purpose entities. There are potential tax advantages and development advantages to holding property in smaller or separate economic units. The owner can decide to develop the properties together or to sell off one of the economic units. The owner may also decide to develop the property in phases, based on market conditions and forces. An important condemnation issue is whether or not these economic units may be considered as a single property or must be considered as multiple properties. Assume Acme, LLC owns both Green Acres and Blue Acres. A condemning authority takes only a portion of Green Acres, but the project will interfere with the use, access, or BENJAMIN TOZER some other development potential of The landowner purchased Parcel 20 and Tract A together practices in the Blue Acres as well. Is Acme entitled to and had planned a single, phased development involving the areas of litigation damages caused to Blue Acres as well property. At the time of the taking, Tract A was improved with and real estate as Green Acres? The answer, as in so a commercial structure leased to a bank and Parcel 20 was work, with particular many legal issues, is that it depends. mostly unimproved, though the two shared parking, sanitary expertise related to Primarily, it depends on whether in the sewer, storm sewer, lighting, fire protection, zoning, and litigation and advice marketplace, Blue Acres and Green guidance. on issues pertaining Acres are considered part of the same At the district court level, the county moved for partial to condemnation larger parcel. summary judgment to exclude a claim for any damages to Tract and regulatory The “larger parcel” rule considers A, arguing that because the parcels were separate tax parcels processes. Ben is three factors: unity of ownership, unity and because Tract A was improved while Parcel 20 was not, focused on assisting of use, and physical unity, also known as that the larger parcel test was not met in the case and that landowners and contiguity.5 The use considered is one damages to Tract A could not be found. The district court taking authorities of highest and best use.6 For properties granted the county’s motion. in condemnation. that are not contiguous, Minnesota law The landowner appealed to the court of appeals, which He has substantial provides a specific rule in Minn. Stat. overturned the district court opinion. The court of appeals held experience in §117.086, subd. 1. A recent unpublished that the required question was whether the “physically distinct eminent domain Minnesota Court of Appeals case helps tracts [were] adaptable to, and actually and permanently used work. spell out the rule in Minnesota for as, a single unitary tract” and that that question was a question contiguous properties. for the jury unless the evidence was conclusive.8
12 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Minnesota follows the “before” and “after” rule, comparing the value of the property before the taking with the value after the taking in order to determine the property compensation.
In this case, the court overturned the district court because the evidence was not conclusive and genuine issues of material fact existed as to whether property was a single unitary tract. Disputes identified by the court of appeals included facts related to the shared driveway, lighting, utilities, and storm water systems; differing appraisers’ opinions; and the intent of the owner with respect to the development, irrigation, landscaping, and zoning, among other issues. In condemnation cases where the issue involves contiguous land, if there are disputed facts then the question of what land must be considered and compensated for will be a decision for the jury. It is vital in such cases that condemnation counsel closely follows the disputed facts and issues that may demonstrate a sufficient connection to claim damages. s
Notes 1 Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 875 (Minn. 2010). 2 U.S. Const. Amend. V; Minn. Const. art. I, § 13. 3 Victor Co. v. State, 290 Minn. 40, 44, 186 N.W.2d 168, 171–72 (1971). 4 State v. Strom, 493 N.W.2d 554, 558–59 (Minn. 1992). 5 J.D. Eaton, Real Estate Valuation in Litigation, 76 (2nd ed., Appraisal Institute 1995). 6 See Id.; Minneapolis – St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 277 N.W.2d 394, 399 (1937). 7 County of Anoka v. Ramsey-Arbor Properties, LLC, No. A17-1060, 2017 WL 6567697 (Minn. Ct. App. 12/26/2017) (unpublished). 8 Id. at 2 (citing Victor Co. v. State, 290 Minn. 40, 41, 186 N.W.2d 168, 170–72 (1971)).
www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 13 ColleagueCorner | MEET JESSIE NICHOLSON
Why did you decide to go to law school? ‘Never forget Law school was not something that was on my radar as a child growing up, nor was it something I gave serious consid- eration to until much later. I had been teaching Spanish at where you the University of Northern Iowa in Cedar Falls for a couple of years when my husband announced that he was being asked to relocate to Sioux City, Iowa, by the company he was working came from’ at. Because that was not something he wanted to consider, he instead elected to see if there were openings in the same indus- try in Minnesota. He landed on his feet in the Twin Cities. But that left me without a job. So, after careful consideration and deciding not to pursue a doctorate that would have enabled me to be marketable at the university teaching level, I decided to switch careers. And the law seemed like an interesting option.
What brought you to legal aid work? One of the pastors at our church happened to also be the only African American judge on the district court bench in Black Hawk County, Iowa. He gave a sermon one Sunday to a group of us who were graduating from high school. And I will never forget his admonition to us: “For those of you out there who are fortunate enough to be heading to college, I want you to never forget where you came from. Whatever you do with your lives, always remember to give something back.” Though I didn’t do that in my first career as a Spanish teacher, Judge Parker’s words somehow reentered my mind and heart once I entered law school. I knew that I wanted to use my law degree to work on behalf of those who, in my mind, had historically limited access to our system of justice. I thought about pursuing a career as a public defender but ultimately decided on the civil side.
What’s the most rewarding facet of your work? The most frustrating? Having a staff of lawyers, paralegals, and other professionals who truly embrace the mission of legal aid brings me great joy. It is a privilege to work on their behalf to help SMRLS maintain its role as a respected provider of legal aid services to the disadvantaged. And I cannot really identify any single frustration other than the obvious frustrations faced by any non-profit: having adequate resources to meet the needs of the eligible client community.
What advice do you have for law students or newer lawyers thinking of working for legal aid? I think the best advice I can offer law students and new lawyers is to seek out opportunities to volunteer or intern with a legal aid provider. It is critically important that they develop a good understanding of the work as well as an understanding of the challenges faced by the client community.
What are the resources/opportunities that you’ve valued most as a member of the MSBA? JESSIE NICHOLSON has served as the chief executive officer of The networking opportunities. This allows me to be an effec- Southern Minnesota Regional Legal Services (SMRLS) since 2007 after tive ambassador for SMRLS. Another benefit I derive from be- having been employed as a staff attorney in various practice areas and ing a member of the association is the exposure to a broad array in an administrative capacity under SMRLS’s pioneer director, Bruce of CLE opportunities at a discount. As a public sector attorney, Beneke. She has devoted her entire legal career, since 1985, in service this is very important. Additionally, I have served on various to the disadvantaged in addressing their critical civil legal needs. committees and this has allowed me to help shape the direction of the association for the betterment of all its members. s
14 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org Mem er A a ta e a s
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0519 MSBA-Advantage flyer.indd 1 5/21/19 2:16 PM MORE THAN A RULE OF THUMB Your smartphone and the 5th Amendment
By Adam T. Johnson
ccording to the Pew Research Center, 77 percent apothegm—a line-up, a measurement of the body, and a hand- of Americans own a smartphone.1 These devices writing exemplar are all incapable of decrypting a device like a employ encryption technology when not in use, smartphone. Additionally, a line-up, a body measurement, and a and require a user’s passcode or other biometric hand-writing exemplar do not constitute acts of production that feature to unlock them. Encryption, though a may betray the contents of a person’s mind, and much, much Ablessing for domestic harmony, poses significant barriers to law more. So Diamond does bring us into new and important (and enforcement investigations.2 These barriers can be overcome, unsettled) territory. Diamond also begs a series of important ques- but it is not only technological barriers that prevent access to tions: If the 5th Amendment is not offended by the compulsory these devices. The courts, outpaced by technology—and that’s process of a thumbprint or fingerprint, is it also constitutional to fine, it’s not a knock—are grappling with applications of the 4th require a defendant to provide his smartphone passcode, either and 5th Amendments to a wide variety of searches and com- orally or in writing? If not why, why not? If so, how come? Was pulsory processes in the ever-evolving technological landscape. Diamond correctly decided? What lies ahead? It is the answers to Last year in State v. Diamond, the Minnesota Supreme Court these questions that I attempt to take up presently. held as a matter of first impression that it is not a violation of the 5th Amendment for a district court to order a criminal The 5th Amendment defendant to provide a fingerprint or thumbprint so that his The clause from the 5th Amendment germane to this article smartphone may be unlocked.3 On the one hand, Diamond was is the one prescribing that no person shall be “compelled in any not a watershed case. Some might say Diamond presents as a criminal case to be a witness against himself.”5 The Minnesota somewhat conventional restatement of established Minnesota Constitution contains an identical clause in its Bill of Rights.6 law allowing for the compulsory production of some kind of In short, this clause bars the government from (1) compelling non-testimonial evidence, such as appearing in a line-up, having a defendant (2) to make a testimonial communication to the one’s body measured, or requiring a defendant to produce a state (3) that is incriminating.7 The constitutional foundation hand-writing exemplar.4 In this regard, Diamond is not all that underlying the privilege is the respect a government must ac- significant; it is not a cloudburst in 5th Amendment law. cord to the dignity and integrity of its citizens.8 The privilege On the other hand—and there are only two hands in this also helps to ensure the appropriate state-individual balance by
16 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org requiring the government to “shoulder stated by a federal district court in Illinois, Bard Tjoflat, U.S. Circuit Judge for the the entire load” in building and bringing a “[w]ith the touch of a finger, a suspect is 11th Circuit Court of Appeals, in In re criminal case.9 As stated by the Supreme testifying that he or she has accessed the Grand Jury Subpoena Duces Tecum Dated Court in Estelle v. Smith, “[t]he essence of phone before, at a minimum, to set up March 25, 2011 (In re Grand Jury Subpoe- this basic constitutional principle is the the fingerprint password capability, and na Duces Tecum herein). requirement that the [s]tate which pro- that he or she currently has some level of In Fisher, the Court considered two poses to convict and punish an individual control over or relatively significant con- Internal Revenue Service investiga- produce the evidence against him by the nection to the phone and its contents.”16 tions, one in the 5th Circuit and one in independent labor of its officers, not by It is unclear from the Minnesota Su- the 3rd Circuit, where the IRS sought to the simple, cruel expedient of forcing it preme Court’s opinion in Diamond what obtain voluntarily prepared documents from his own lips.”10 And so we can all evidence existed to connect Diamond that certain taxpayers had given to their remain silent, kind of.11 to the seized cellphone prior to his un- attorneys.22 In each investigation, the Over the course of our nation’s his- locking it. The opinion states only that IRS issued a summons requiring the tax- tory—but mostly during the 20th centu- the “police lawfully seized a cellphone payer's attorney to hand over the docu- ry—the 5th Amendment has been con- from [Diamond], a burglary suspect, ments, “which included an accountant's tinually revisited by jurists and scholars and attempted to execute a valid war- work papers, copies of the taxpayer's in innumerable contexts. It is a frequent rant to search the cellphone.”17 On the returns, and copies of other reports and guest in the case law, and it is only natu- topic of evidence connecting Diamond to correspondence.”23 In response, attor- ral that it would be. People, both defen- the phone, the court of appeals opinion neys refused to comply, invoking both the dant and officer, are wont to gab. In cases states that Diamond “was booked at the attorney-client privilege and their clients’ where the government seeks to compel Scott County jail, where staff collected 5th Amendment privilege against self- some kind of process (say, the production and stored his property, including his incrimination. The IRS then brought an of documents by way of a subpoena), the shoes and cellphone.”18 It may have been enforcement action in district court. physical act itself may implicate the pro- the case that Diamond’s possession and Turning to the question that matters tections of the 5th Amendment. This is control of the phone were undisputed— for our purposes here, the Supreme Court so because a physical act is deemed tes- or, stated differently, that police already treated the taxpayers as retaining pos- timonial when the act is a communica- knew that the phone belonged to Dia- session of the documents.24 The Court tion that “itself, explicitly or implicitly, mond, making any testimonial aspect in held that the taxpayers' act of production relate[s] a factual assertion or disclose[s] his unlocking it a “foregone conclusion.” could qualify as testimonial if conceding information.”12 In other instances, an act In any event, the Minnesota Supreme the existence, possession and control, may not be testimonial where the act pro- Court did not discuss this doctrine.19 In- and authenticity of the documents tend- vides “real or physical evidence” that is stead the Court stated that there was not ed to incriminate them.25 However, in “used solely to measure physical proper- “any communicative testimony inherent the cases before it, the Court concluded ties,” or where the act is used to “exhibit in providing the fingerprint.” This is a that the act of providing the subpoenaed physical characteristics.”13 potential crack in Diamond’s foundation, documents would not involve testimonial In these examples, a distinction exists which will be discussed more fully below. self-incrimination because the IRS was in between the testimonial act of producing “no way relying on the truth telling of the documents as evidence and the nontes- The “foregone conclusion” doctrine taxpayer.”26 This reasoning took root as timonial act of producing the body as The Supreme Court has marked out the foregone conclusions doctrine, which evidence. This is the distinction that led two ways in which an “act of production” the Court went on to explain as follows: our own state Supreme Court to hold in is considered not testimonial. The first, Diamond, rightly or wrongly, that there as briefly identified above, exists where It is doubtful that implicitly admit- was nothing “testimonial” in requiring the act of production does not betray the ting the existence and possession the defendant to supply his fingerprint. contents or processes of a person’s mind of the papers rises to the level of As stated by the court in Diamond, there (their knowledge, thoughts, or beliefs). testimony within the protection of was not “any communicative testimony This is the theory that drove the decision the Fifth Amendment.... Surely the inherent in providing the fingerprint,” in Diamond. The second class of cases fall Government is in no way relying on and the act did not “reveal the contents into what has been coined the “foregone the ‘truth telling’ of the taxpayer of [the defendant’s] mind.”14 This is only conclusion” grouping. Under this doc- to prove the existence of or his partially true, which is a variant on say- trine, an act of production is not testimo- access to the documents. The ex- ing this may not be true at all. You see, nial, even if the act conveys a fact regard- istence and location of the papers Diamond provided his fingerprint directly ing knowledge, thoughts, or beliefs—say, are a foregone conclusion and the onto a seized phone during a court pro- the existence or location of subpoenaed taxpayer adds little or nothing to ceeding after being held in civil contempt materials, or ownership over a passcode- the sum total of the Government's and warned about the consequences of protected device—if the government can information by conceding that he criminal contempt. show with “reasonable particularity” that, in fact has the papers. Under these In providing his fingerprint onto the at the time it sought to compel the act of circumstances by enforcement of seized device, Diamond committed an production, it already knew of the mate- the summons ‘no constitutional “act” that was testimonial in nature: His rials, thereby making any testimonial as- rights are touched. The question is unlocking of the phone with his finger pect a “foregone conclusion.”20 not of testimony but of surrender.’27 established that the phone, in fact, be- There are two seminal Supreme Court longed to him. In other words, the act cases that gave rise to, and solidified, the Twenty-four years after Fisher and sev- conceded that the phone was at one foregone conclusion doctrine: Fisher v. en years before the first iPhone, the Court time in his possession and control, and United States and United States v. Hub- decided Hubbell.28 In Hubbell, a grand jury authenticated either ownership or access bell.21 Both of these cases are excellently investigating the activities of the White- to the phone and all of its contents.15 As summarized by the Honorable Gerald water Development Corporation issued www.mnbar.org May/June 2019 s Bench&Bar of Minnesota 17 a subpoena duces tecum requiring Hub- stand on his 5th Amendment right to not nial act of production. What matters for bell to provide certain documents. In re- incriminate himself through the testimo- the nonce is the court’s second conclu- sponse, Hubbell invoked his 5th Amend- nial act of producing documents the gov- sion—that the government fell short in ment privilege, so the government did ernment was not privy to. its knowledge base, thereby placing In re him the kindness of obtaining a district Judge Tjoflat discussed both of these Grand Jury Subpoena Duces Tecum outside court order granting him immunity.29 decisions in In re Grand Jury Subpoena the “foregone conclusion” class of cases. Hubbell then complied with the subpoe- Duces Tecum. There, as revealed in part Persuasive to the court was the fact na and turned over 13,120 pages of docu- by its name, a grand jury investigating that the government could not articulate, ments.30 Not long after that, Hubbell was child pornography issued a subpoena at least to the court’s satisfaction, that it indicted for several federal crimes. duces tecum to an individual (the target knew whether any files were located on Hubbell moved to dismiss the indict- of the investigation, referred to as “John the hard drives, and what’s more, whether ment, arguing that the government could Doe”) requiring him to produce the de- Doe was capable of accessing the encrypt- not convict him without the documents crypted contents of his laptop computers ed portions of the drives (a curious finding, that had been provided after the grant and external hard drives.34 After Doe as- as it was undisputed that the hard drives of immunity. The district court held a serted his 5th Amendment privilege, the belonged to Doe).41 The problem for the hearing, determined that the government government sought, and the district court court, therefore, was principally that the could not show that it had knowledge of granted, Doe “act-of-production immu- government did not know what, if any- the contents of the documents from a nity.”35 This immunity was said to “con- thing, was held on the encrypted drives. source other than the documents them- vey immunity for the act of production This hang-up by the court was likely a selves, and dismissed the indictment.31 of the unencrypted drives, but [did] not result of reading too much into certain On review, the Supreme Court concluded convey immunity regarding the United language from Hubbell, where the govern- that Hubbell's act of production was suffi- States’ [derivative] use” of the decrypted ment was asking a person to retrieve and ciently testimonial to trigger 5th Amend- contents of the drives.36 Doe was later produce to the government documents ment protection because knowledge of incarcerated for contempt when he ap- the government was unaware of entirely. the implicit testimonial facts associated peared before the grand jury and refused But the provision of a passcode and with his act of production was not a fore- to decrypt the drives. the physical retrieval of documents are gone conclusion.32 In this way, the Court In In re Grand Jury Subpoena Duces Te- two very different things. In Professor in Hubbell distinguished Fisher. As stated cum, Doe was tracked by police to a hotel Orin Kerr’s estimation, the 11th Circuit’s by the Court: room in California as part of a child por- error was in “applying language from cas- nography investigation. A search warrant es compelling disclosure of broad classes Whatever the scope of this ‘fore- issued allowing law enforcement to seize of documents to the very different case gone conclusion’ rationale, the all digital media, as well as any encryp- of an order to enter a password to unlock facts of this case plainly fall outside tion devices or codes necessary to access a computer.”42 Professor Kerr went on to of it. While in Fisher the Govern- such media. Officers seized two laptops state that the error is subtle, but critical, ment already knew that the docu- and five external hard drives. The FBI writing, “[i]t’s subtle because both cases ments were in the attorneys' pos- analyzed the digital media, but was un- involve steps that lead to the government session and could independently able to access portions of the hard drives. accessing a lot of documents. If you look confirm their existence and au- Later, a grand jury issued a subpoena du- at the cases from 30,000 feet, they look thenticity through the accoun- ces tecum requiring Doe to produce the kind of similar. But the error is critical tants who created them, here the “unencrypted contents” of the digital because the testimonial aspects of pro- Government has not shown that it media, and “any and all containers or duction in the two cases are vastly differ- had any prior knowledge of either folders thereon.”37 Interestingly, and of ent.”43 Professor Kerr goes on to illustrate the existence or the whereabouts importance, the fact that the hard drives this distinction in the foregone conclu- of the 13,120 pages of documents belonged to Doe was not in dispute.38 In- sion cases as follows: ultimately produced by respondent. stead of arguing that his act of production The Government cannot cure this would establish ownership, Doe argued In particular, the idea that the deficiency through the overbroad that by decrypting the hard drives, he government must have some idea argument that a businessman such would be testifying that he, as opposed to about what files exist and where as respondent will always possess someone else, placed the contents onto they are located makes sense when general business and tax records the hard drives, encrypted the contents, the government has an order re- that fall within the broad categories and could retrieve them. Thus, the ques- quiring the suspect to hand over a described in this subpoena.33 tion before the court was “whether Doe’s described set of files—but it makes act of decryption and production would no sense when the government Beyond paper documents have been testimonial.”39 is requiring the suspect to enter a So far, I have examined two act-of- In answering this question, the court password to access those files itself. production cases in which the govern- looked to both Fisher and Hubbell, and When the government is relying on ment sought physical documentary re- ultimately concluded that “(1) Doe’s de- the target to go through his stuff cords either in the possession of a person cryption and production of the contents and say which files are responsive or thought to be in the possession of a of the drives would be testimonial, not to a request, the government is person. In Fisher, the documents were merely a physical act; and (2) the explicit obtaining the suspect’s testimony known to exist, and the taxpayer’s testi- and implicit factual communications as- about what files exist and which monial act of providing the documents sociated with the decryption and pro- files are responsive. The suspect added nothing to the government’s case. duction are not foregone conclusions.”40 has a Fifth Amendment privilege In Hubbell, conversely, the existence of The first conclusion is of little debate, unless that testimony about exis- the documents was not a foregone con- as everyone can agree that the physical tence and location of the sought- clusion, and the defendant was able to act of producing a passcode is a testimo- after files is a foregone conclusion.
18 Bench&Bar of Minnesota s May/June 2019 www.mnbar.org When the court order only compels Computer was not a retrenchment from the password to an encrypted electronic the suspect to enter a password, on the 11th Circuit’s framework. Instead, device is that the defendant knows the the other hand, the government is the 3rd Circuit simply found that the password, and can therefore access the not obtaining the suspect’s testi- government provided “evidence to show device.”47 The court in Jones, consistent mony about what documents ex- both that files exist on the encrypted por- with Professor Kerr’s analysis, deemed ir- ist, where they are, and whether tions of the devices and that Doe [could] relevant whether the government knew they comply with the court order. access them.”45 Thus, while the 3rd Cir- what the contents of the phone were The only implicit testimony is, “I cuit did in fact look to the testimonial act because the only testimonial act was know the password.” What files of production inherent in the decryption whether the defendant knew the pass- exist, where, and what they say is itself, the court was persuaded by the fact code. Thus, under Jones, the government distinct from that. The government that the government had a significant in Massachusetts needs only to establish has to find that out on its own. knowledge base of what was contained “that a defendant knows the password to The government has to search the on the hard drives in question. This fact decrypt an electronic device before his computer and look for the records drove the outcome. or her knowledge of the password can described in the warrant. It isn’t re- be deemed a foregone conclusion under lying on the defendant’s testimony The present state of things the Fifth Amendment….”48 Under Mas- about what is on the computer be- The analysis from the 11th and 3rd sachusetts law, to succeed in compelling cause entering in the password does Circuits was not followed earlier this a defendant to decrypt a device, the gov- not imply any testimony about that. year, when the Supreme Judicial Court of ernment must show that the defendant Massachusetts decided Commonwealth v. knows the password beyond a reasonable In his 2016 article, from which I have Jones, in line with the analysis advocated doubt. In deciding on this evidentiary quoted above, Professor Kerr voiced his for in Professor Kerr’s article.46 In Jones, standard, the court in Jones concluded hope that “courts faced with this issue the government was interested in viewing that using any lower standard of proof don’t just assume that the 11th Circuit’s Jones’s lawfully seized cellphone for evi- would create a “greater risk of incorrectly analysis was correct.” At the time, there dence in his prosecution for human traf- imputing knowledge to those defendants was a case with a similar question pend- ficking and prostitution-related offenses. who truly do not know the password.” ing in the 3rd Circuit. In that case, U.S. v. In resolving the 5th Amendment ques- A survey of courts reveals a divide Apple MacPro Computer, the 3rd Circuit tion, the Supreme Judicial Court of Mas- on whether, and to what extent, the affirmed the district court’s order compel- sachusetts held that “[i]n the context of 5th Amendment is implicated in an as- ling decryption—a disparate result from compelled decryption, the only fact con- sortment of situations involving the the 11th Circuit.44 And yet, Apple MacPro veyed by compelling a defendant to enter compelled production of passcodes and
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