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Democracy Goes to Court

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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER III MARCH 2021 www.mnbar.org DEMOCRACY GOES TO COURT Litigating voting rights and election administration Examining high-profile complaints against election attorneys OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER III MARCH 2021 www.mnbar.org 2 President’s Page Defending the rule of law BY DYAN EbeRT 14 It only sounds like common sense 5 Professional Why repealing the seat belt evidence rules Responsibility serves no public purpose. Private discipline in 2020 BY GENEVIEVE M. ZIMMERMAN, PATRICK STONEKING, BY SUSAN HUMISTON & JOel D. CARlsON 6 Law & Technology Ransomware and federal sanctions BY MARK LANTERMAN 17 TODD: A game-changer from the 8th Circuit In early February the 8th Circuit Court of Appeals issued an opinion that should horrify anyone who has prepared a transfer-on-death deed for a client. BY SAM CALVERT 8 Colleague Corner Meet Anu Chudasama 10 New Lawyers Covid-19 and force majeure: What every 18 attorney ought to know Democracy goes to court BY RAChel D. ZAIGER Litigating voting rights and election administration in Minnesota in 2020. 12 Construction Law Section BY GEORGE W. SOUle & ANNA VEIT-CARTER Writing Contest Winner Covid-19 forces contractors to examine AIA agreements BY TAYLOR STEMleR 33 Notes & Trends Landmarks in the law 26 What would a discipline office do? 43 People & Practice Examining the high-profile complaints Member announcements against election attorneys from a lawyer regulatory perspective. 45 Opportunity Market BY WIllIAM J. WERNZ Classified ads www.mnbar.org March 2021 s Bench&Bar of Minnesota 1 President’sPage | BY DYAN EBERT Defending the rule of law have been fortunate to practice on popular participation and support to re-invigoration of the MSBA’s Fair my entire career with a firm that maintain their authority.” (Minn. R. Prof. Response Committee. I am also excited recognizes the importance of Conduct, Preamble ¶6.) to share that former MSBA Presidents lawyers taking on leadership roles The rule of law is the bedrock of our Susan Holden and Paul Godfrey have Iand giving back to the communities democracy. It permeates our society; it is agreed to serve as co-chairs of this in which we live and work. The firm part of our social compact and it ensures important committee. encourages—and I dare say even a fair and just society. John Adams wrote The Fair Response Committee’s expects—lawyers to lend their time and that a republic is “a government of laws, purpose is to encourage the legal profes- talent to organizations that are dedicated and not of men.” The fundamental sion to promote public confidence in to enhancing the community, addressing proposition behind this statement is that the administration of justice by fostering social and economic injustices, and no one is above the law and everyone public understanding and appreciation of improving the legal profession and the must be treated the same under law. the judicial system. As lawyers, we must legal system. I am proud to say that The American Bar Association do more than pay mere lip service to the throughout the last 27 years, I have had explains the rule of law as rule of law; we must recognize that this the honor of working with colleagues obligation necessarily involves a duty to who have served as state, district, and [A] set of principles, or ideals, defend and preserve the independence of local bar presidents; industry association for ensuring an orderly and just the judiciary. The Fair Response Com- board members and presidents; and society. Many countries through- mittee is one small way that the MSBA nonprofit board members and presidents. out the world strive to uphold the can assist our members in fulfilling this I know that my firm is not unique in rule of law where no one is above important obligation. this regard. Lawyers are often regarded the law, everyone is treated equally As former U.S. Supreme Court Justice as leaders in their communities and are under the law, everyone is held Sandra Day O’Connor wrote, “Commit- tapped to take on significant leadership accountable to the same laws, ment to the rule of law provides a basic positions with various organizations. there are clear and fair processes assurance that people can know what to for enforcing laws, there is an expect whether what they do is popular A civic duty independent judiciary, and human or unpopular at the time.” We need to The events of the last year, however, rights are guaranteed for all.1 hold true to this commitment as we hear have taught me that the most important reports of the trial of the officer accused leadership role that a lawyer has in One of my favorite ways to think of murdering George Floyd. We need to our society does not bring with it a of the rule of law is found in the U.S. be strong in our support of the people formal title or appointment. The most Constitution, and is known as “the great working in that courtroom—the judge, important professional obligation we promise:” Every man, woman, and child the lawyers, the clerks, and the court have is to defend should be judged by the same legal rules reporter and bailiffs. We also need to the rule of law. and have access to the same public encourage people in our various commu- To be sure, benefits, no matter the color of our skin, nities who raise questions about the trial the obligation national origins, or gender. process to be respectful and appreciate to defend the the work of the people in that court- rule of law is The Fair Response Committee room. We need to uphold the rule of law embedded in our Of course, an independent judiciary that is playing out on this very visible, Rules of Profes- is key to preserving the rule of law. To highly charged, stage. sional Conduct, be truly independent, the judiciary must Please also commit to educating the which provide be free of undue influence and must people in your circles about the rule of DYAN EBERT that “a lawyer remain committed to the protection of law. Talk about your experiences as a is a partner at the should further individual rights and liberties. Given the lawyer, and share stories of how justice central Minnesota the public’s significant role the courts and judges prevailed. Think about the reasons you firm of Quinlivan & understanding of play in the administration of justice, it is went to law school, as this may reinvigo- Hughes, P.A., where and confidence not surprising that they are often subject rate your passion for your profession. To- she served as CEO in the rule of law to criticism. But when criticism of judges’ gether let’s rebuild trust and confidence from 2003-2010 and and the justice rulings crosses the line into personal at- in this ideal we hold so dear, and without 2014-2019. She also system because tacks or intimidation, or proves to be in- which our society would crumble. s served on the board of legal institutions accurate and unjust, the public’s respect directors of Minnesota in a constitu- for our system of justice is undermined 1 https://www.americanbar.org/groups/public_ CLE from 2012-2019. tional democ- and it is our obligation to speak out. education/resources/rule-of-law/ (last accessed racy depend To that end, I recently announced the 2/7/21). 2 Bench&Bar of Minnesota s March 2021 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722 Editor Steve Perry [email protected] Art Director W E A R E P L E A S E D T O A N N O U N C E Jennifer Wallace O U R N E W E S T P A R T N E R Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778 MSBA Executive Council President Dyan J. Ebert President-elect J A R E D M . R E A M S Jennifer A. Thompson Treasurer Paul D. Peterson Secretary Paul Floyd 8 0 0 L U M B E R E X C H A N G E B U I L D I N G , 1 0 S O U T H F I F T H S T R E E T New Lawyers Chair M I N N E A P O L I S , M N 5 5 4 0 2 ∙ P H O N E : 6 1 2 . 2 3 6 . 0 1 6 0 Kyle Willems E C K L A N D B L A N D O . C O M Chief Executive Officer Cheryl Dalby Publications Committee Chairperson: Carol K. Lee Steven P. Aggergaard Emily K. Cooper Holly A. Fistler Wood Foster Bethany Hurd Malcolm P.W. Whynott © 2021 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 mailing offices. Postmaster: Send address changes to Bench & Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis, MN 55402-1641. Subscription price: $25.00 for members which is included in dues. Nonmembers $35.00 per year. Some back issues available at $5.00 each. Editorial Policy: The opinions expressed in Bench & Bar are those of the authors and do not necessarily reflect association policy or editorial concurrence. Publication of advertisements does not constitute an endorsement.
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