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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER II
FEBRUARY 2020
www.mnbar.org
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER II
FEBRUARY 2020
www.mnbar.org
ONLINE ONLY
SEVERE OR PERVASIVE
Just how bad does sexual
harassment have to be in
order to be actionable?
An in-depth review of
sex harassment case law
By Sheila Engelmeier ON THE COVER
and Heather Tabery
14
4 President’s Page THIRD CHILD. FIRST REAL
Our Duluth Lynchings PARENTAL LEAVE.
By Tom Nelson What’s wrong with this picture?
Why Minnesota should join the
6 MSBA in Action ranks of states making it easier for
The MSBA’s 2020 lawyers to take parental leave.
lobbying agenda
By Michael P. Boulette
Professional
8
Responsibility
Public discipline in 2019
By Susan Humiston
18
10 Law & Technology eDISCOVERY WITHOUT
Taking responsibility for
your cybersecurity THE ENDLESS BATTLES
By Mark Lanterman What you need to know about electronic
documents to keep your client and
yourself out of trouble
By Tom Tinkham and Kate Johnson
12 Colleague Corner
‘A career in the law
seemed perfect’
Meet Nora Huxtable
24
MINNESOTA NEEDS MORE
28 Notes & Trends FOREIGN-TRAINED LAWYERS
Landmarks in the law The business case for making it easier
to license attorneys trained outside the
U.S. in Minnesota
37 Opportunity Market
Classified ads
By Inti Martínez-Alemán
39 People & Practice
Member announcements
2 Bench&Bar of Minnesota s February 2020 www.mnbar.org
B o r e n e L aw F i r m – i m m i g r at i o n L aw
New System for 2020 H-1 Work Visas
Official publication of the
Minnesota State Bar Association
www.mnbar.org | (800) 882-6722
Starting March 1, 2020
Editor
USCIS will begin using a new
Steve Perry
sperry@mnbars.org Online Registration System
for H-1 Work Visas
Design & Production
Jennifer Wallace
Advice for Employer Clients:
Advertising Sales
Start Now on 2020 H-1s for
Pierre Production & Promotions, Inc.
(763) 497-1778 Key International Personnel
MSBA Executive Council If the 2020 quota is missed,
President employers may be unable to
Tom Nelson get new H-1 work visas until
October, 2021 Scott Borene
President-elect sborene@borene.com
Dyan J. Ebert
Treasurer
Jennifer A. Thompson Named 2020 Lawyer of the Year
Secretary in Immigration Law in Minnesota by
Paul D. Peterson Best Lawyers in America
New Lawyers Chair
Blair Harrington
Chief Executive Officer 3950 IDS Center Minneapolis www.borene.com 612.321.0082
Cheryl Dalby
Publications Committee
Chairperson
Carol K. Lee
Steven P. Aggergaard
Emily K. Cooper
Holly A. Fistler
Wood Foster
June Hoidal
Bethany Hurd
Henry D. Long
Malcolm P.W. Whynott
SOCIAL SECURITY DISABILITY
© 2020 Minnesota State Bar Association
Bench & Bar of Minnesota (ISSN 02761505) is published Monthly,
except Bi-Monthly May/June by the Minnesota State Bar
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available at $5.00 each. Editorial Policy: The opinions expressed
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advertisements does not constitute an endorsement. The editors
reserve the right to accept or reject prospective advertisements in
accordance with their editorial judgment. 612-825-7777
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WE’D LIKE TO HEAR FROM YOU: To query potential articles for Paul Stephanie
Successfully pursuing benefits since 1993
Bench & Bar, or to pass along your comments on matters related Livgard Christel
to the profession, the MSBA, or this magazine, write to editor
Steve Perry at sperry@mnbar.org or at the postal address above.
www.mnbar.org February 2020 s Bench&Bar of Minnesota 3
President’sPage | BY TOM NELSON
Our Duluth Lynchings
O
Between the 1870’s
n June 15, 1920— and 1950’s, there were
in less than a more than 4,500 terror
day’s time—three lynchings in America.
young Black men Those lynchings were
(Elias Clayton, Elmer Jackson, intended to create fear.
and Isaac McGhie) were They were spectacles
wrongly arrested; ripped out meant to be seen and
of their jail cell by a vicious to convey a message—
mob; taunted, tortured and with children on
dragged to a lamppost; and parents’ shoulders
mercilessly murdered. Lynched. for a better view;
It didn’t happen “Down sometimes with the
South;” it happened here, in local Black population
Duluth. Thousands of White forced to watch. They
Minnesotans were involved. were performed in
This coming June 15—100 the presence of the
years later to the day—in a purported Rule of
deliberate act of remembrance Law, and sometimes
and with a community-wide with its permission—
commitment to learning and often in the public
hope, we will gather in Duluth square; sometimes on a courthouse
to mark those murders and to move their ghastly deaths; posed for souvenir lawn. The killings took place while
forward together. We will do so again the photographs; and left their victims dead statues were being built (purportedly
next day in Minneapolis. Please join us. at the lamppost. “Strange fruit,” as Billie to honor those who fought for “the lost
Here is some background. Holiday would later sing. Judges Cant cause,” largely during the 1890’s to the
The basic facts are lawless and and Fesler tried to stop the slaughter; as 1920’s, and notably again during the
brutal. For some unknown reason, Irene did Attorneys McClearn and McDevitt, Civil Rights Era of the 50’s and 60’s),
Tusken claimed that six young Black and Fathers Powers and Maloney—only and while federal anti-lynching statutes
circus workers raped her on June 14. Her to be told: “To hell with the law!” and were being resisted (filibustered in the
doctor examined her, and later testified “We don’t care if they are innocent or U.S. Senate, citing the canard of “racial
that she had not been raped or otherwise not.” The bodies were removed the next favoritism” or promising enforcement
assaulted. The next morning, June 15, day, and taken to Crawford Mortuary under states’ rights). The lynchings could
thirteen Black men were apprehended (after another mortuary declined to only have happened by viewing people of
by the police as the circus was leaving help). They were buried in unmarked color as some sort of unworthy “Other,”
town; seven were released; six were graves—a wrong only recently righted. not as fellow human beings. A reminder
jailed. That evening, the Duluth Herald Three men were convicted of of the need for vigilance, even today,
headline read: “rioting,” but served light sentences. when incidents and policies seem afoot
“West Duluth No murderers were ever convicted of to “otherize” still others.
Girl Victim of the murders, despite thousands of eye As the Duluth killers proudly sought
Six Negroes.” witnesses. Some members of the media a photographic trophy of their treachery
A mob of were outraged; others excused, justified, (suitable for postcards, which promptly
thousands or even tried to explain the “benefits” of flew off the shelves of Duluth merchants
gathered outside the lynchings. at 50 cents each), one of the lynchers
the jail (having There was and is no excuse, of yelled out, ironically and aptly: “Throw
been urged course. The throng of Minnesotans that a little light on the subject!” Headlights
to “join the night in Duluth did not lose their minds illuminated the scene for those preen-
necktie party”); or misplace their consciences. They ing to be seen. That photograph cannot
TOM NELSON is a overcame the knew what they were doing and they in- be un-seen; nor should it be. As Ida B.
partner at Stinson LLP police; broke tended to do it. The pictures show their Wells said so well: “The way to right
(formerly Leonard, into the jail; individual faces—some somber and oth- wrongs is to turn the light of truth upon
Street and Deinard). conducted a ers smiling, seemingly proud of what they them.” History can be a light in its own
He is a past president “trial” on the had done. Individuals don’t get to blame, right, helping us face forward into our
of the Hennepin County spot; dragged or hide in, some sort of “mob mentality.” future together. That’s what the coming
Bar Association. three of them We lawyers know that. Mob Rule is, after months hold: not just noting history, but
up the street to all, the exact opposite of the Rule of Law. making history.
4 Bench&Bar of Minnesota s February 2020 www.mnbar.org
W H E Np P E R F O R M A N C E C O U N T S
sh
i
n ity
n a
ia
rd epl ip e nt ndeme y e de tees
a m I c t s s
G u a r i R a n s h ev i n u d g r i ff R e m n i r s T u p e r Tr u a
r di l J e n t e v e S e es
r t i o u a r R e p h i p n S h g m e f I n d e c e i i t y T RO r s e d u s t e
C e p G a r i i a n s ev i J u d r i f t R e m n e r s u p e Tr e a
i r
sh rtio uard Rep hip
l
S h e e n I n d e iv t y S RO s e d
r m
This is all such a sobering part of t o
a C e G r i ans vin udg riff Rec mni rs T uper
our history; sickening, really; but also
h ip iora rdi ple p J he ent de ive S O d ea
r s With R e experience
hi S PJT n ce ity TR rs e
r t over u a 40 years m has been I
ato t Ce p G ari ians evin Judg riff t Re emn ers upe
strengthening—if we learn from it. As
it turns out, Duluth was the very first
Minnesota’s
n surety o r a r d specialist.
h i t ibonding l
ep hip
With the h eknowledge,
e n I n d experience eiv ity S T
monument to honor its lynching victims. m e o r sand rguidance rse
community in our nation to build a
u R S m c
c h at C e G rlaw
i firms
n s expect i n from d g a bonding
i f f Rcompany. e n s p e
ta p ora dia ple v Ju her ent dem iver Su
n t s•h iSupersedeas
The Clayton-Jackson-McGhie Memorial
At e i r e p I n e c•e i t y
h m a t o r C•eInjunction
t u i R s h i n S d g m• Replevin
a i
is a dignified and moving plaza—taking
r • Appeals • Certiorari
f f n
c G n ri nt R • em vers
p o r a r• Restraining
back the corner of First Street and
Second Avenue South (one block up t t a
e r v nt i d i a p l e v Order J u • eJudgment
h d
A n s m e • License r h
s r t iBonds a r• Trust i p n SRepresentative
e • hPersonal m e In •cei ty
from Superior Street), across the street
o o u R i
C c h • Conservator e
a t t C p•GProfessional s
r i i a n Liability v i •uERISA g
d r i f•f Fidelity R e e•m n
Engraved into the walls, in bold letters, t t a e r v
from the site of the 1920 murders.
i r a l e J e t
it says: “An Event Happened Here UponA n s men rsh rtio uard Rep hip
o Sh men Ind ceiv ity
C o t a c hLocally e operated. n
s v i with ind house g f Re
Which It Is Difficult To Speak And
t r v a towned t Cand
i p
G a rSame
r
i day
i a n service
l e J u e r i fauthority!
n t e mn s
Impossible To Remain Silent.” Sculpted n
A nse me rsh rtio ar Rep hip d Sh me Ind stee ea
o h t o e u s i n g iff ru d
C t a c v121 G Suite r i 980, n e v MNu d55402 se
into the walls are images of Mr. Clayton,
a South t CEighthp Street a i a J r T r
t r i r l
Minneapolis,
e
n s h(651) 224-3335 r dMinneapolis S h T RO S u p e
Mr. Jackson, and Mr. McGhie—not
as they were in that photograph, but A n s e In m St.ePaul call r e r t i o u a or R e p h i(612) p 339-5522
o h t o G i s i n
C tFax: a c (612) v a349-3657 p o r a r d i a n• pwww.pjtagency.com
t C• email@pjtagency.com ev vers nity
instead standing tall and strong. That
memorial calls for you to visit. www. t e
A ns me rs rti r n h i r l i
claytonjacksonmcghie.org
o c h t o e G ua Re ece dem
These coming months (and June 15 C ta a C R In
and 16, in particular) will include unique,
important, moving, and motivating
At
moments.
ERISA DISABILITY CLAIMS
n On June 15 in Duluth, Bryan
ERISA LITIGATION IS A LABYRINTHINE MAZE OF
Stevenson will speak at the site
of the lynchings. He is the author REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP.
of “Just Mercy” and the founder
of the Equal Justice Initiative in
Montgomery, Alabama—site of
the national lynching memorial.
A sacred place. www.eji.org ROB LEIGHTON DENISE TATARYN
952-405-7177 952-405-7178
n Earlier that Monday, there
will be an extended public
program at Duluth’s courthouse
plaza. Minnesota federal courts
will be closed that day, in honor of
the commemoration proceedings. communities at
Judge Richard Gergel, author of my.mnbar.org
“Unexampled Courage,” will
join us.
n On Tuesday, June 16, at the
Minneapolis Hilton, Bryan
Stevenson and Judge Gergel
will speak to us again. JOIN THE DISCUSSION
Please mark your calendars to join us
as we mark these moments—and as we The best conversations include you.
move forward together. s my.mnbar.org is your online community — exclusively for MSBA members —
to enhance the way you connect with your bar association colleagues.
www.mnbar.org February 2020 s Bench&Bar of Minnesota 5
MSBAinAction
The MSBA’s 2020
lobbying agenda
T
he MSBA Council has named the association’s
lobbying priorities for the 2020 Minnesota
legislative session that begins February 11.
The MSBA will advocate for the repeal of Minn.
Stat. §480A.08 subd. 3(c), which establishes criteria
for publication of Court of Appeals opinions. This
legislative position, adopted in December based on
separation-of-powers concerns, was recommended
by an ad hoc committee that included Court of Ap-
peals judges and practitioners. When the statute is
repealed, the committee recommends that the Court
of Appeals develop its own criteria for publication,
soliciting input from the bar on proposed rules.
The Council also identified two priorities that
protect the rights and interests of those often unable The MSBA New Lawyers
to protect themselves. The MSBA will engage in Section celebrated the
custody and parenting time issues that are expected holiday season at the
to arise in the session based on existing MSBA Minneapolis Club with
positions that emphasize the best interests of children. gambling, food, and
The Council also committed lobbying resources for beverages. Guests at the
an informational hearing on HF2593, which would December 18 event mingled
establish a right to counsel for tenants in public with other new lawyers
housing eviction actions alleging breach of lease. and had the opportunity
Finally, the MSBA will pursue amendment of the to win prizes by playing
Minnesota Uniform Transfer to Minors Act to unify blackjack, Texas Hold’em,
all accounts to terminate at age 21, allow transfers Three Way Action poker, and
to qualified minor’s trusts, modify the custodian’s participating in a wine toss.
investment standard, and streamline account
termination and distribution when no custodian
is acting. In addition to its affirmative agenda, the
MSBA provides technical assistance on numerous
bills and ensures that members’ voices are heard
Pro bono: Malpractice concerns?
P
on changes that would affect the practice of law or ro bono service is a great way for new lawyers and lawyers who
substantive areas of law. are not actively practicing full-time to gain experience, sharpen
their practice skills, and provide critically needed legal assistance
Nominations open for to a low-income Minnesotans. One of the concerns often raised,
however, is how to handle potential claims of malpractice that arise out
Bernard P. Becker Awards of pro bono representation. This is particularly troubling for lawyers
who don’t currently have malpractice insurance policies. No need to
worry: Every legal aid program that works with pro bono volunteers
B
ernard P. Becker was a champion of the rights carries malpractice insurance to cover that representation. They do
of the disadvantaged. During his legal career, so for a number of reasons—to make sure their clients receive quality
he worked with the Legal Aid Society of representation from their own staff lawyers and to make sure their
Minneapolis and served as a U.S. Magistrate and a volunteers will provide representation without fear of uncovered
professor at William Mitchell College of Law, where malpractice claims. While the likelihood of a malpractice claim arising
he inspired students with a passion for justice. out of pro bono representation is extremely low, it’s good to know that
The Becker Legal Services Staff award is legal aid programs have their volunteers covered. For lawyers without
presented annually to attorneys, paralegals, any malpractice coverage, the legal aid program’s coverage would
administrators, or other staff employed by a private, be primary, since the pro bono client’s claim would be covered as a
nonprofit agency that provides legal services to client of the legal aid program. (For those attorneys who already have
low-income eligible clients. The Becker Student coverage, it is likely the legal policy would be secondary, but be sure to
Volunteer Award is presented to a law student who contact the referring program to make sure.)
has demonstrated a commitment to providing legal So please don’t let concerns about malpractice coverage and
services to low-income persons. potential claims stop you from volunteering. If you are looking for ways
The deadline for nominations is February 24, 2020. to get started, please contact MSBA Public Service Director Steve
Visit www.mnbar.org/becker-awards for more details. Marchese (smarchese@mnbars.org or 612-278-6308).
6 Bench&Bar of Minnesota s February 2020 www.mnbar.org
N IN TH ED ITIO N N O W AVA IL ABLE
Minnesota
Legal Ethics
An ebook published by the MSBA
written by William J. Wernz
This guide belongs at every
Minnesota attorney’s fingertips.
Free download available at: www.mnbar.org/ebooks
WHAT’S NEW
Updates. The treatise describes all New Opinions. Summarizes and Private Disciplines. Critically reviews
important changes in Minnesota legal ethics analyzes each new ABA ethics opinion. recent private disciplines on contact with a
in relation to the relevant ethics rules. represented party, former client conflicts,
Minnesota Supreme Court Cases. “knowingly” violating a court rule, and due
New Rules. Highlights important changes to Describes and analyzes all important process in discipline cases.
multi-jurisdictional practice rule 5.5 (May 2019). Court discipline cases.
ProfessionalResponsibility | BY SUSAN HUMISTON
Public discipline in 2019
S
ince we have entered a new decade, I thought it would year-over-year increase is unknown, but perhaps it speaks
be interesting to start the annual review of public to the increased mobility and multijurisdictional practice of
discipline with a look back at discipline numbers by lawyers. It’s too soon to see what 2020 will bring for reciprocal
decade. From 2010-2019, a total of 403 attorneys were discipline, although once again we have several such cases in
publicly disciplined, an average of approximately 40 per year. the office as I write.
During this decade, the yearly number of publicly disciplined Five attorneys were disbarred in 2019:
lawyers ranged from a low of 26 (in 2010 and 2011) to a high of
65 in 2015. n Craighton Boates was disbarred based upon his felony
For reasons that remain unclear, this number is significantly bank fraud conviction in Arizona (one of the reciprocal
higher than numbers for the prior decade. From 2000-2009, discipline cases mentioned above);
327 lawyers were publicly disciplined, an average of 33 a year n Boris Gorshteyn was disbarred for abandoning his
(from a low of 19 in 2004 to a high of 48 in 2006). The ‘90s practice, settling client claims without authorization, and
saw more discipline than the ‘00s, but still produced numbers misappropriating hundreds of thousands of dollars in client
notably lower than the most recent decade. From 1990-1999, funds;
365 attorneys were publicly disciplined—from a high of 55 n Thomas Laughlin was disbarred for misappropriating
in 1990 to a low of 20 in 2004. One thing to note about the client funds, a misappropriation that came to light during a
‘90s, however, is the total number of disbarments compared trust account audit by the Director’s office;
to the other decades. In the ‘90s, 74 lawyers were disbarred, n Murad Mohammad was disbarred for misconduct in 11
compared to 52 in the ‘00s, and 62 in the ‘10s. To date, the ‘90s client cases, including misappropriation of client funds, failing
have been the high point for disbarments, but the most recent to return unearned fees, lack of communication and diligence
decade saw the highest volume of public discipline overall. It in multiple client matters, and making false statements to the
will be interesting to see where the next decade trends—if it Director; and
yields a trend at all. Due to the vagaries of human nature, I’m n Israel Villanueva, a lawyer licensed in Mexico who was
never sure what to expect. licensed in Minnesota as a foreign legal consultant—authorized
to provide advice in Minnesota regarding the laws of Mexico—
Discipline in 2019 was disbarred from practice in Minnesota for abandoning
Thirty-five attorneys received discipline in 2019. Public several client matters, misappropriating client funds, and failing
discipline is imposed not to punish the attorney, but to protect to cooperate with the Director’s investigation.
the public, the profession, and the judicial system, and to
deter misconduct by the attorney and others. As I wrote in Misappropriation is the common thread through the
last year’s column on this subject, the most notable trends disbarments. Two lawyers—Gorshteyn and Mohammad—also
in 2018 involved the high number of accounted for more than 45 complaints between them, illus-
disbarments and a higher than usual trating the widespread impact some lawyers have on clients.
number of disability transfers. This past
year saw a year-over-year decrease in Suspensions
disbarments (down from eight to five), as Twenty-two attorneys were suspended in 2019, very similar
well as a significant decrease in disability to 2018. In reviewing the 22 cases, there is no particularly
transfers. In 2019, only one attorney was noteworthy trend. The misconduct ranged from filing frivolous
transferred to disability inactive status, claims or arguments (Wendy Nora and Lori Sklar) and failing
compared to six in 2018—a welcome to diligently handle client matters (Daniel Westerman) to
SUSAN HUMISTON change, although we still see wellbeing more serious conduct, such as the two lawyers who received
is the director of the issues playing a prominent role in lengthy suspensions for criminal felony convictions involving
Office of Lawyers discipline cases. solicitation of sex with minors (Mark Lichtenwalter and Mark
Professional The most visible trend in 2019 was Lorentzen). In contract to 2018, when an additional five cases
Responsibility and reciprocal discipline. If an attorney involving misappropriation also resulted in suspensions, only
Client Security licensed in Minnesota is disciplined in one additional misappropriation case was decided in 2019 that
Board. Prior to her another jurisdiction, Minnesota will resulted in a suspension, not disbarment (Christine Middleton).
appointment, Susan impose reciprocal discipline to ensure Accordingly, year over year, instances of misappropriation were
worked in-house that the lawyer is not able to avoid the down significantly.
at a publicly traded consequences of misconduct in another As in 2018, we continue to see misconduct involving serious
company, and in state by simply moving their practice. In lack of candor issues. For example, Bobby Onyemeh Sea re-
private practice as a 2019, eight reciprocal disciplines were ceived a four-month suspension for lack of candor to the court
litigation attorney. imposed, as compared to the typical one regarding the reason for his absence at trial. Matthew McCol-
SUSAN.HUMISTON or two annually. The discipline imposed lister received a 90-day suspension for making false statements
@COURTS.STATE.MN.US spanned the gamut from disbarment to to his client and opposing counsel regarding a settlement, in
reprimands. The basis for this significant addition to additional misconduct, with evidence of mitigation.
8 Bench&Bar of Minnesota s February 2020 www.mnbar.orgDavid Izek received a lengthy suspension for misconduct that focus on your trust account books and records if you are in
included making a false statement to a prosecutor in a matter. private practice. You cannot just assume a trusted employee
Daniel Miller received a lengthy suspension for misconduct has it under control. Our website contains a lot of relevant
that included lying to a client and the court. I know it is human information, including a link to a free CLE on trust accounting
nature to lie, and that it is also human nature to attempt to at the state law library’s website.
protect yourself when things go wrong, but it goes without say-
ing that honesty is fundamental for lawyers, as attested by the Conclusion
discipline involving such misconduct. The OLPR maintains on its website (lprb.mncourts.gov) a list
of disbarred and currently suspended attorneys. You can also
Public reprimands check the public disciplinary history of any Minnesota attorney
Eight attorneys received public reprimands in 2019 (four by using the “Lawyer Search” function on the first page of the
reprimands only, four reprimands and probation), down from OLPR website. Fortunately, very few of the more than 25,000
14 reprimands in 2018. A public reprimand is the least severe active lawyers in Minnesota have disciplinary records.
public sanction the court generally imposes. In 2018, the As they say, “there but for the grace of God go I.” May
majority of public reprimands related to trust account errors these public discipline cases remind you of the importance
that resulted in shortages and negligent misappropriation. of maintaining an ethical practice, and may these cases also
I’m pleased to report that only one of the public reprimands motivate you to take care of yourself, so that you are in the best
in 2019 was for trust account books and records violations, position possible to handle our very challenging jobs; much is
a significant year-over-year decline. Please continue to expected of us. Call if you need us—651-296-3952. s
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www.mnbar.org February 2020 s Bench&Bar of Minnesota 9
MN Bench and Bar 2020Law&Technology | BY MARK LANTERMAN
of ransomware. Breaches of this kind
are costly in more than one way, and as
discussed recently by the cybersecurity
caucus, could have devastating future
effects on government entities.
Given the methods by which cyberat-
tacks are introduced and the fact that cy-
bercrime is constantly evolving to match
new technologies and security measures,
it only makes sense that the ultimate
responsibility for cybersecurity postures
rests within organizations. No framework,
guidance, or amount of federal support
could account for the multitude of ways
in which a cyber event can transpire.
While such support systems may be help-
ful in providing some sort of guidance,
as I discussed in my last article, pursuing
compliance with a standard set of best
Taking responsibility
practices does not automatically ensure
that an entity is secure. Federal support
may aid in compliance, but the day-to-
for your cybersecurity
day requirements and cultures of security
needed to combat cyberthreats can only
be developed and maintained in-house.
Resisting internal security protocols and
C
failing to provide adequate budgeting for
yberthreats continue to be a I think it is simply an acknowledgement these measures will undercut any degree
huge source of risk for public of our current reality. When it comes of compliance that an organization may
and private organizations alike. to our digital age and its expansive believe that it has achieved with respect
On December 4, the Senate’s impact on the way we conduct our to federal guidelines. For the legal com-
bipartisan cybersecurity caucus learned lives, it is ultimately the responsibility of munity, prioritizing cybersecurity means
about the threat that ransomware poses each entity (really, each individual) to prioritizing clients, their sensitive infor-
and discussed learning, mitigation, protect themselves and take a proactive mation and privacy, and the reputation
widespread education, and the approach to their security. and future of the firm.
importance of information sharing in The risk of falling victim to a ran- So with respect to Sen. King’s
constructing somware attack is one of many possible comment, it’s probably true that the
realistic cyberthreats that organizations face. federal government cannot reasonably
protection Law firms are at particular risk given assist each and every organization that
measures.1 While the sorts of sensitive client data they is subject to the sort of cyberthreats we
the hearing collect and store. In previous articles, face today, especially when each and
emphasized the I have expounded upon the dangers of every organization is at risk. When it
need for public social engineering attacks, and more comes to security, compliance is no
and private particularly, the risks associated with guarantee. But it is nonetheless within
interplay to best phishing attacks. Social engineering these organizations that security cultures
MARK LANTERMAN face the difficult- takes advantage of human vulnerabilities can flourish and thrive. Information
is CTO of Computer to-manage nature rather than technological weaknesses. sharing, proactive strategies, education,
Forensic Services. of evolving Cybercriminals often do their best to and the sorts of countermeasures that
A former member cyberthreats, U.S. make a phishing email appear legitimate, the cybersecurity caucus proposed all
of the U.S. Secret Sen. Angus King attempting to make an employee carry rely on individuals for their widespread
Service Electronic (I-Maine) pointed out some action and to do so quickly. implementation and support.
Crimes Taskforce, out, “The federal They often capitalize on urgency to As we start the year 2020, a good
Mark has 28 years government cloud an employee’s sense of something resolution for all of us may be to take
of security/forensic can’t provide seeming out of place. heed of our personal responsibility
experience and support for Ransomware attacks are often intro- in bringing about the sort of security
has testified in over every institution duced via social engineering methods, awareness for which our organizations
2,000 matters. He is in America particularly by email, and will block and firms aim. s
a member of the MN that’s subject to access to or threaten dissemination of an
Lawyers Professional ransomware.” organization’s data until a ransom is paid. 1
https://www.fifthdomain.com/congress/capitol-
Responsibility Board. And while that Public and private organizations, includ- hill/2019/12/04/heres-what-senators-learned-
may sound bleak, ing law firms, have been made victims about-the-ransomware-threat/
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‘A career in the law seemed perfect’
NORA HUXTABLE attended the University
Why did you go to law school?
of St. Thomas School of Law (J.D., 2019)
The inciting moment for law and Northern Michigan University (B.S.
school came in late 2015, when I Electronic Journalism, B.S. Theatre,
was fired from a job for “coming 2013). Bar involvement (past and present)
out” to my boss. What followed was includes: board member, Minnesota Lav-
a period of intense self-doubt and ender Bar Association; Elder Law Diversity
confusion. I was unsure whether Committee, Elder Law Section; and Jerry
the termination was legal or ille- G. Dygert Clerk, Probate Section. She is a
gal, whether I had done something former on-air host for Classical MPR.
wrong, or whether there was any NORA@ARROWHEADLEGAL.COM
recourse. After a few weeks, I had an
epiphany—if I, with all my privilege, I also want to take this
could be so lost and helpless, there opportunity to address an issue
must be many more who would ben- facing Greater Minnesota—access
efit from someone on their side. to justice. There is a significant
There’s a saying that your career shortage of legal representation
should be the confluence of your in rural areas, so I encourage any
passion, your skillset, the needs attorney, law student, or legal
of the world, and earning enough professional seeking a change of
to live. When I contemplated my pace and a more balanced life to
options, a career in the law seemed consider small-town practice.
perfect. It was a chance to help peo-
ple and attend to those in periods of What’s the best advice you
transition. Thanks to the encourage- ever received?
ment of family and friends and the That’s a tough question! I have
generosity of St. Thomas’s faculty, had many wonderful mentors
staff, and administration, I can now over the years, and each of them
proudly say I’m an attorney. has offered their own advice.
Some of my favorites include the
After you got your JD, you embraced a chance to move to importance of relaxing and being confident in yourself (from
Grand Marais to start your career. Why did you choose a judge after a memorably dismal interview), using scrutiny
Greater Minnesota? to your advantage (a UST mentor commenting on being a
The Twin Cities is an incredible place, filled with unique, minority), and learning to pay attention to the canary in your
brilliant legal professionals doing exciting work. I truly enjoyed emotional and ethical coal mine (a St. Thomas professor).
my time living and working there, the relationships I made, and But my best advice on how to live a decent life comes from
the many amenities of a larger city. Practicing in Greater Min- my parents. My mom is fond of the saying, “Eyes forward.” It is
nesota, though, offers several advantages, among them a slower a reminder to learn from mistakes without being consumed by
pace of life, greater work-life balance, and a chance to be an them. My father is a pastor, and his favorite benediction, one
attorney for the community. which I take to heart, reads:
People need to do what they find fulfilling, whether that’s
intensely complex legal puzzles, high-stakes litigation, or policy Go out into the world in peace.
work. For me, it’s relationships. I love nothing more than Have courage.
meeting a new client, shaking their hand, looking them in the Hold on to that which is good.
eye, and asking how I can help them with their life goals. The Give to no person evil for evil.
sense of community is strong in a small town, and it has been a Strengthen the fainthearted.
pleasure to join this one. Support the weak.
Help those who are suffering.
You’re doing two distinct jobs. Can you describe them? Honor and serve all people.
I work half-time as an associate at Smith Law, PLLC, a Rejoicing in the presence and the power of the Holy Spirit.
three-attorney general practice firm in Grand Marais, and half-
time as an assistant public defender for the State of Minnesota. What do you like to do in your spare time?
My private practice predominantly focuses on transactional I enjoy everything Minnesota’s beautiful north shore has to
work, with an emphasis on real estate. The public defender offer, from mountain biking to hiking, trail running to skiing,
position allows me to help the people of Cook County in snowshoeing to rock climbing, and spending an afternoon in a
another capacity. It’s been a pleasure serving in both positions, hammock with a good book. I also enjoy making, consuming,
and I admire the work done by my colleagues at the firm and viewing, and listening to art, and I volunteer with the Cook
the 6th Judicial District Public Defenders. County Search and Rescue team. s
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* Based on median hourly rate; Blue Hill Research study “Building a Case for Law Practice Management”Third child. First real parental leave.
WHAT’S WRONG WITH THIS PICTURE?
Why Minnesota should wellbeing, large law firms have been fall- But notice is just the beginning.
ing over themselves trying to offer more Even after talking with everyone who
join the ranks of states generous leave packages. needs to know (a process that, by itself,
making it easier for lawyers Just this year, Minnesota’s own Dorsey leaves one a bit self-conscious), it’s time
& Whitney expanded its paid paren- to transition files to colleagues; determine
to take parental leave tal leave program policy from 10 to 15 staffing and strategy for the next several
weeks,3 and even this generous policy is months; reassure wary clients; and of
By Michael P. Boulette no longer market-leading. My own firm, course, refer out the new cases and clients
Barnes & Thornburg, launched a 16- coming in the door. And this isn’t just my
S
week leave policy in 2019, and other large experience. An examination of attorney
ometime not long before you are firms rolled out gender-neutral paid leave parental leave in Florida put it this way:
reading this, I became a father policies extending up to 16,4 18,5 and
for the third time. And though even 20 weeks.6 The attorney preparing to take leave
sleepless nights with an infant are, Still, as parental leave becomes the must determine the best time to dis-
by now, nothing new, this birth and this new normal at many law firms, courts cuss the issue with partners, staff,
baby will be different. It will mark the first have been much slower to take notice, and clients, and the timing of these
time—after 10 years of practice and two leading to reports of one attorney being discussions is impacted by many fac-
children—that I will be taking an actual forced to bring her newborn to court after tors, including trial strategy, discov-
parental leave. being denied a continuance, only to be ery conferences, deadlines, exten-
To be clear, I don’t mean that as a accused of being a bad mother.7 sions, and continuances. Attorneys
boast. It’s embarrassing. When my first often must consider when to stop
daughter, Harriet, was born, I left her Making leave possible taking on new matters and may be
and my wife to attend a mediation dur- Despite parental leave becoming in- forced to seek substitute counsel to
ing my “leave,” only to return to the of- creasingly commonplace, legal practice monitor their caseload. In a profes-
fice when Harriet was a few weeks old to poses significant challenges to lawyers sion in which success relies heav-
work deep into the wee morning hours to welcoming a new child. Even where indi- ily on client service and caseload,
meet a motion deadline. I’m no prouder vidual firms commit to policies that sup- attorneys forced to seek substitute
that when my daughter Frances arrived port new-parent attorneys, other profes- counsel due to parental leave are
four years later, I spent more time wading sional demands make taking advantage of put at a professional disadvantage
through an appellate brief than with her. these policies daunting. that can hinder careers. Workers
These are my regrets, and they stem from In my own practice, I have had to face tensions when trying to bal-
wrongheaded attitudes I internalized far strike a delicate balance as I approached ance their roles as professionals and
too early in my professional life: I must be leave. Initially, there was the question parents, especially when there are
a lawyer first and everything else second. of when to tell my partners, colleagues, adverse professional consequences
It’s taken me a decade to unlearn those clients, and the court. The timing of to prioritizing family over work.8
lessons, or at least to put them into their those discussions wasn’t always obvious.
proper context. Thankfully, I did. Just in It feels odd to tell one’s managing Facing all these hurdles, it’s no wonder
time for one last try. partner about a pregnancy before your that so many parents, particularly moth-
Sadly, I suspect I’m far from the only own mother—but re-staffing dozens of ers, choose to leave traditional legal prac-
lawyer who has returned to practice too cases takes much longer than painting a tice, while many male attorneys simply
quickly out of a sense of professional nursery. Conversations with clients were forgo much of the leave they’re offered.9
obligation, or, more troubling, has had even more delicate. If a trial could likely Frankly, it’s a miracle lawyers have chil-
no choice but to return to a small or solo fall during my leave, should the client dren at all.
practice that could not manage without know before or after a key settlement
them. conference? Certainly, clients need to Parental leave… of the court
But change could be on the horizon. know who will be trying their cases, but In answer to these challenges, courts
Let’s be clear that the United States it could also exacerbate their anxiety and in some states have stepped up to en-
lags woefully behind other developed affect negotiations. And of course, each shrine parental relief into their rules of
countries when it comes to supporting conversation increases the likelihood the practice. In fact, 2019 didn’t just witness
new parents.1 Worse yet, the law is a re- news could spread in problematic ways. I large law firms one-upping each other to
markably unfriendly career when it comes might notify the court of parental leave support the new parents in their ranks.
to any kind of balance, let alone the de- in a scheduling conference, only to find State Supreme Courts in both North
mands that come with raising children.2 out the news was shared with opposing Carolina10 and Florida11 explicitly amend-
But as the legal professional continues to counsel in another matter, who is already ed their rules of practice to accommodate
come to grips with issues of equity and telling her client I’ll soon be off the case. parental leave.
14 Bench&Bar of Minnesota s February 2020 www.mnbar.org“It feels odd to tell one’s managing partner about a pregnancy before your own mother— but re-staffing dozens of cases takes much longer than painting a nursery. “ www.mnbar.org February 2020 s Bench&Bar of Minnesota 15
North Carolina’s newly revised Rule Florida’s rule does have its limitations.
26 of General Practice rules permit Unlike North Carolina’s rule, Florida’s
attorneys to designate themselves as rule requires the leave-taking attorney
unavailable for at least 12 weeks after the to seek a continuance, which has a
birth or adoption of a child, and the court presumptive maximum of three months—
“may not hold a proceeding in any case and no presumptive minimum.19 District
in which that attorney is an attorney of courts retain discretion to deny the
record.”12 A related amendment to the continuance for substantial prejudice
rules of appellate procedure provides a or unreasonable delay of an emergency
similar process to prevent oral arguments proceeding.20 And unlike the North
80%
from being scheduled while an attorney Carolina parental leave rule, Florida’s
is on leave.13 And lest any particularly does not apply at all in criminal, juvenile,
hard-nosed opposing counsel consider or civil commitment proceedings that
using abusive discovery tactics to thwart involve sexually violent predators.21 Like
of professional the new rules, parties are also prohibited I said, it has its limitations.
from noticing depositions during the But compared to Minnesota’s rule on
fathers in the U.S. leave period.14 To take advantage of the trial continuances—which requires either
new rule, an attorney need only designate an emergency or a stipulation reached
take less than two their proposed leave dates with the court, shortly after trial is set—these new rules
and attest that “adequate measures [have are positively progressive.22
weeks of leave been taken] to protect the interests of the
attorney’s clients” during the leave and Why Minnesota needs
that the leave “is not being designated for a parental leave rule
the purpose of interfering with the timely A rule governing parental leave is an
5%
disposition of the proceeding.”15 In rolling idea whose time has come. As the bench
out the new rules, Chief Justice Cheri and bar continue to focus on initiatives
Beasley touted the Court’s commitment to advance equity and wellbeing within
to “strengthening families and supporting the profession, designated rules on
take no leave at all children.”16 professional leave speak to both.
Just a few months after North Caro- First, clear parental leave rules address
lina, Florida’s Supreme Court adopted longstanding gender disparities in the
its own parental leave rule after nearly practice of law. Submissions by the Florida
four years of discussion and debate.17 Bar’s Board of Governors and the Florida
Under the new Rule 2.570, courts are Association of Women Lawyers detailed
required to grant continuances of up to a long and troubling history of leave be-
three months based on parental leave by ing denied to attorneys, and particularly
a “lead attorney.”18 female attorneys, with harsh results. One
example included a female attorney forced
to leave her seven-week-old infant to trav-
el 200 miles to a trial after her continuance
request was denied. The court was even
“reluctant to allow her breaks to pump in
order to feed her child and maintain her
supply.”23 But while female attorneys may
have no choice but to take some amount
of leave, lingering assumptions about gen-
der roles may discourage male attorneys
from doing the same. In fact, numerous
studies document the stigma faced by men
taking parental leave, leading 80 percent
of professional fathers in the U.S. to take
less than two weeks of leave, while 5 per-
cent take no leave at all.24 A survey of pro-
fessional fathers identified workplace pres-
sure as a significant factor.25 Formalizing
court rules to account for parental leave
can help minimize the adverse conse-
quences for female attorneys taking leave,
while encouraging more male attorneys to
follow suit—increasing opportunities for
female attorneys, with potential “positive
effect[s] on female labor force participa-
tion, professional careers, and women’s
wages.”26
16 Bench&Bar of Minnesota s February 2020 www.mnbar.orgSecond, allowing lawyer-parents to Notes dure, (N.C. Sept. 2019); N.C. R. of Gen.
take leave from their court obligations 1
Gretchen Livington & Deja Thomas, Prac. 26; N.C. R. App. Pro. 33.1.
helps advance our professional commit- Among 41 Countries, only U.S. Lacks Paid 11
In re Amendments to the Florida Rules of
ment to wellbeing. Lawyers are people Parental Leave, Pew Research Center: Judicial Administration-Parental Leave, No.
too; so are their children. And like all Fact Tank (12/16/2019). https://www. SC18-1554 (Fla. 12/19/2019).
parents, new lawyer moms and dads must pewresearch.org/fact-tank/2019/12/16/u-s- 12
N.C. R. Gen. P. 26(a), (b).
juggle personal and professional commit- lacks-mandated-paid-parental-leave/ 13
N.C. R. App. Proc. 33.1(a), (b).
ments, perhaps none so life-changing as 2
Leigh McMullan Abramson, “Parents in 14
N.C. R. Gen. P. 26(g).
caring for a new infant. And the benefits the Law: Is it Possible to be both an At- 15
N.C. R. Gen. P. 26(c), (d), (e).
of leave are myriad, including decreased torney and a Committed Mom or Dad?” 16
North Carolina Judicial Branch, “Chief
rates of post-partum depression and in- The Atlantic (9/17/2015). https://www. Justice Beasley Announces Rule Change
creased levels of parent involvement.27 theatlantic.com/business/archive/2015/09/ to Strengthen Families and Support Chil-
Providing new parents some small mom-dad-parent-lawyer/405742/ dren,” 9/10/2019.
amount of time away from professional 3
Kathryn Rubino, “Biglaw Firm An- 17
In re Amendments to the Florida Rules of
commitments is simply humane. It is, nounces Generous Expansion of Parental Judicial Administration-Parental Leave, No.
quite frankly, the right thing to do. Leave Benefits for Lawyers,” Above SC18-1554 (Fla. 12/19/2019).
But don’t take my word for it. Just the Law (1/8/2020). https://abovethelaw. 18
Fla. R. Jud. Admin. 2.570.
last year, the American Bar Associations com/2020/01/dorsey-parental-leave/ 19
Fla. R. Jud. Admin. 2.570 (a), (b), (c).
House of Delegates approved Resolution 4
Staci Zaretsky, “Biglaw Firm Wows All Em- 20
Fla. R. Jud. Admin. 2.570 (e).
101B urging all states to provide specific ployees with Brand New Family-Friendly 21
Fla. R. Jud. Admin. 2.570 (f).
continuance procedures for parental Benefits,” Above the Law (8/8/2019). 22
Minn. R. Gen. Prac. 122.
leave: https://abovethelaw.com/2019/08/biglaw-firm- 23
In re Amendments to the Florida Rules of
wows-all-employees-with-brand-new-family- Judicial Administration-Parental Leave, No.
Resolved, that the American Bar friendly-benefits/ SC18-1554, Cmts. from Florida Associa-
Association urges the enactment 5
Kathryn Rubino, “Trend Alert: Another tion of Women Lawyers at 2 (11/15/2018).
of a rule by all state, local, territo- Biglaw Firm Expands Gender-Neutral Pa- 24
Brad Harrington, et al. 2014. The New
rial, and tribal legislative bodies or rental Leave,” Above the Law (7/29/2019). Dad: Take Your Leave. Boston College
their highest courts charged with https://abovethelaw.com/2019/07/munger- Center for Work and Family (2014).
the regulation of the legal profes- tolles-expands-gender-neutral-parental-leave/ 25
DOL Policy Brief, Paternity Leave: Why
sion, as well as by all federal courts, 6
Staci Zaretsky, “Biglaw Firm Announces Parental Leave for Fathers Is So Important for
providing that a motion for con- ‘Industry-Leading’ Parental Leave Policy,” Working Families. https://www.dol.gov/asp/
tinuance based on parental leave of Above the Law (8/6/2019); Kathryn policy development/paternityBrief.pdf
either the lead attorney or another Rubio, “Another Biglaw Firm Gets In the 26
In re Amendments to the Florida Rules of
integrally involved attorney in the Improved Parental Leave Game,” Above Judicial Administration-Parental Leave,
matter be granted if: the Law (7/8/2019). https://abovethelaw. No. SC18-1554, Cmts. from Florida
com/2019/07/kelley-drye-gets-in-the-im- Bar Board of Governors at 12 (Nov. 15,
a) Consented to by all parties proved-parental-leave-game/ 2018); Joanne Lipman, “Want Equality?
b) Or if not consented to by all par- 7
Staci Zaretsky, “Should Judges Delay Make New Dads Stay Home,” Wall Street
ties and the movant demonstrates: Trials for Pregnant Lawyers,” Above the Journal (9/28/2018). https://www.wsj.com/
Law (7/21/2016). https://abovethelaw. articles/want-equality-make-new-dads-stay-
1. the motion is made within com/2016/07/should-judges-delay-trials-for- home-1538151219
a reasonable time after the pregnant-lawyers/ 27
Elana Lyn Gross, “How Paid Paternity
reason for the continuance 8
In re Amendments to the Florida Rules of Leave Can Help Close the Gender Pay
has been discovered; Judicial Administration-Parental Leave, Gap,” Forbes.com (5/14/2019). https://
2. there is no substantial SC15-1554, Petition at 9 (9/14/2018). www.forbes.com/sites/elanagross/2019/05/14/
prejudice to another party; 9
Supra note 2; see also Vivia Chen, “Rate of how-paid-paternity-leave-can-help-close-the-
3. the criminal defendant’s Men Taking Paternity Leave Falls Again,” gender-pay-gap/#3517ebdb50c1
speedy trial rights are not American Lawyer (7/24/2019). https://www. 28
ABA House of Delegates Resolu-
prejudiced; and law.com/americanlawyer/2019/07/24/rate-of- tion 101B (1/29/2019). https://www.
4. the judge finds that the men-taking-paternity-leave-falls-again/ americanbar.org/content/dam/aba/images/
request was not made in bad 10
Order Amending Rules of Appellate Proce- news/2019mymhodres/101b.pdf
faith, including for purposes
of undue delay.28
Minnesota could be next. As I write MICHAEL P. BOULETTE is an attorney at Barnes & Thornburg LLP. He litigates
this, the Minnesota State Bar Association high-stakes divorce and child custody cases, regularly handling multi-
is convening a working group on parental million dollar divorces involving closely held businesses, commercial real
leave and court rules to address this issue. estate valuation, fraud and concealed assets, executive benefits, trusts, and
I’d encourage all interested members to inherited wealth, in addition to high-conflict custody cases with allegations
write the MSBA to express your interest of abuse, alienation, or mental health complications. His clients include
or support. No need to write to me, business owners, public figures, entrepreneurs, C-suite executives, high-
though—I’ll be on leave. s net-worth families, medical and legal professionals, and their spouses.
MBOULETTE@BTLAW.COM
www.mnbar.org February 2020 s Bench&Bar of Minnesota 17You can also read
