The ghost of water wars future - The Great Lakes Compact and the coming freshwater crisis - Minnesota State Bar Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER VII
AUGUST 2021
www.mnbar.org
The ghost of water wars future
The Great Lakes Compact and the coming freshwater crisis
I love LawPay! I’m not sure why I
waited so long to get it set up.
+
– Law Firm in Ohio
Trusted by more than 150,000 professionals, LawPay is a
Proud simple, secure solution that allows you to easily accept
Member
credit and eCheck payments online, in person, or through
Benefit
your favorite practice management tools.
22% increase in cash flow with online payments
Vetted and approved by all 50 state bars, 70+
local and specialty bars, the ABA, and the ALA
62% of bills sent online are paid in 24 hours
YOUR FIRM
LOGO HERE
Trust Payment
IOLTA Deposit
New Case Reference
**** **** **** 9995 ***
TOTAL: $1,500.00
POWERED BY
PAY ATTORNEY
Get started at
lawpay.com/mnbar
888-515-9108
Data based on an average of firm accounts
receivables increases using online billing solutions.
LawPay is a registered agent of Wells Fargo Bank N.A.,
Concord, CA and Synovus Bank, Columbus, GA.
OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVIII NUMBER VII
AUGUST 2021
www.mnbar.org
2 President’s Page
The voice of the profession
By Jennifer Thompson
MSBA in Action
4
Volunteer attorneys
needed as post-pandemic
evictions loom
Professional
6
Responsibility
Supervising probation is a
great way to volunteer
By Susan Humiston 12
THE GHOST OF
8 Law & Technology
Security is a team game
WATER WARS FUTURE
By Mark Lanterman
The Great Lakes Compact and
the coming freshwater crisis
By Jeremy P. Greenhouse
10 New Lawyers
Client relationships are
hard work. My dad taught
me they’re worth it.
By Carrie Osowski
30 Notes & Trends
22
Landmarks in the law 2021 LEGISLATIVE
SESSION RECAP
42 People & Practice A long and winding road
Member announcements By Bryan Lake
45 Opportunity Market
Classified ads
24
IMMIGRATION ROUNDTABLE
The Biden administration so far
A discussion moderated by
DON’T MISS AN ISSUE OF BENCH & BAR R. Mark Frey with Paschal O.
Renew your MSBA membership dues. Nwokocha, Gloria Contreras Edin,
Renew online at www.mnbar.org/renew and Robert P. Webber
www.mnbar.org August 2021 s Bench&Bar of Minnesota 1
President’sPage | BY JENNIFER THOMPSON
The voice of the profession
O
n my first day as president of pleted its strategic planning for the next the development of the pilot program.
the MSBA, I had the honor three years, and the voice of the MSBA The MSBA’s voice matters within the
of signing a petition for the is an important component of that plan. courts and the judicial branch, as well.
association to participate as Significantly, surveys performed as part In addition to serving as amicus curiae,
amicus curiae in a case being considered of the planning process identified the the bar also speaks through petitions and
for review by the Minnesota Supreme leadership role and the voice of the comments to bring important issues to
Court. In amicus petitions, the MSBA MSBA as being of critical importance the Supreme Court’s attention and to
provides the Court information regard- to the overall work the association seek change. Last bar year, for instance,
ing why it is well-positioned to speak on performs. It is valued by and valuable to the MSBA petitioned for an amendment
a particular subject and on behalf of the MSBA members. to the Rules on Lawyer Registration that
profession. The petition I signed read: The MSBA uses its voice in multiple would require lawyers to report annu-
“The MSBA is the largest voluntary ways. For instance, every year the MSBA ally on the number of pro bono service
bar association representing the legal lobbies the Legislature to advance its hours they performed and the financial
profession in Minnesota. Made up of ap- legislative priorities, which have ranged contributions they made to organizations
proximately 13,000 members statewide, from correcting errors in statutes, to that provide legal services to people of
the MSBA represents nearly half of Min- providing law school loan forgiveness for limited means. The MSBA’s petition was
nesota’s licensed attorneys.” In short, the attorneys who practice in Greater Min- granted and the amendment to the rules
MSBA is suited to serve as friend of the nesota, to securing a right to counsel in will be effective January 22, 2022.
court because its membership is vast, and public housing eviction actions. MSBA This bar year, the MSBA will petition
it works to advance causes and positions leadership is regularly reminded by the the Supreme Court for amendments to
important to the entire profession, not MSBA lobbyist that the association the Rules of General Practice, Rules of
just a segment of the profession. has political capital and when issues Civil Procedure, and Rules of Civil Ap-
This articulation of the MSBA’s role that impact the justice system or other pellate Procedure, to facilitate personal
as the voice of the legal profession is substantive areas of law arise, he is often leave requests by attorneys for certain
significant in a couple of respects. First, asked, “What does the MSBA have to health conditions; the birth or adop-
what an enormous responsibility! To say about this?” The MSBA’s voice mat- tion of a child; the need to care for a
uphold professional values, to vet and ters at the Legislature. spouse, household member, dependent,
shape those values, and to provide op- The MSBA’s voice also matters on or family member who has a serious
portunities and space for all stakeholders statewide boards, committees, and task health condition; or the death of a family
to be a part of the process is a signifi- forces. The MSBA is charged with ap- or household member. In bringing this
cant duty. Second, what an enormous pointing attorneys to numerous Min- petition, the MSBA will be vocalizing a
privilege! To be charged with speaking nesota Supreme Court and legal services significant need for change in the profes-
for and leading boards. The MSBA has also been called sion. The MSBA’s thousands of members
the profession upon to appoint members to other com- are potentially impacted by these issues,
is a sacred right mittees and task forces. For instance, and having convened a working group to
and undoubt- in the spring of 2019, the Minnesota thoroughly study the same, the MSBA is
edly provides the Supreme Court issued an order establish- best equipped to speak for the change.
MSBA and its ing the Implementation Committee for While the MSBA has a strong and
members with Proposed Legal Paraprofessional Pilot respected voice, its continued role as a
advantages and Project. Not only did the order acknowl- leader for the profession depends on the
benefits that edge the prior work of the MSBA’s growth and diversification of its member-
must be hon- Alternative Legal Models Task Force in ship. A large and vibrant membership
JENNIFER THOMPSON ored. How the setting the foundation for the establish- makes the MSBA’s voice compelling.
is a founding partner of MSBA exercises ment of the committee, the order also Ensuring broad-spectrum diversity in
the Edina construction the privilege appointed a MSBA representative to our membership—diversity of age and
law firm Thompson and responsibil- the committee. Notably, the MSBA professional experience, race/ethnicity,
Tarasek Lee-O’Halloran ity of serving as representative was the only bar associa- sexuality and gender identity, physical
PLLC. She has the voice of the tion representative on the committee. and neuro-cognitive abilities, metro and
also served on the legal profession The committee’s charge was to develop Greater Minnesota perspectives—is criti-
Minnesota Lawyer is important to a pilot project that would permit legal cal to the MSBA’s ability to speak with
Mutual Insurance MSBA mem- paraprofessionals to perform certain legal an inclusive and authoritative voice.
Company board of bers. work under the supervision of a licensed Your membership is what makes the
directors since 2019. The asso- Minnesota attorney. The MSBA had a MSBA’s voice strong, and it matters as
ciation just com- seat at the table for those discussions and we continue to lead the profession. s
2 Bench&Bar of Minnesota s August 2021 www.mnbar.org
Official publication of the
Minnesota State Bar Association
www.mnbar.org | (800) 882-6722
Editor
Steve Perry
sperry@mnbars.org
Art Director
Jennifer Wallace
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Executive Council
President
Jennifer A. Thompson
President-elect
Paul D. Peterson
Treasurer
Paul Floyd
Secretary
Samuel Edmunds
New Lawyers Chair
Qortney McLeod
Chief Executive Officer
Cheryl Dalby
Publications Committee
Chair: Gloria Stamps-Smith
Steven P. Aggergaard
Emily K. Cooper
Robb P. Enslin
Holly A. Fistler
Wood Foster
Cresston Gackle
Bethany Hurd
Carol A. Lee
Sumbal Mahmud
B. Steven Messick
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. The editors
reserve the right to accept or reject prospective advertisements in
accordance with their editorial judgment.
WE’D LIKE TO HEAR FROM YOU: To query potential articles for
Bench & Bar, or to pass along your comments on matters related
to the profession, the MSBA, or this magazine, write to editor
Steve Perry at sperry@mnbars.org or at the postal address above.
www.mnbar.org August 2021 s Bench&Bar of Minnesota 3
MSBAinAction
Urgent pro bono Did you know
Free, complete
needs across the state Bench & Bar
archives
T
he post-pandemic eviction
moratorium “off-ramp” is
M
now underway. Legal ser- ost members are familiar
vices organizations across the state with the online Bench &
have been planning for over a year Bar homepage you can
for the flood of cases that have now reach by visiting www.mnbar.org/
started to enter the court system. bench-bar. That site offers access
To help face this crisis, the Min- to our library of recent PDF digital
nesota Judicial Branch, Minnesota editions of the magazine and to a
State Bar Association, and legal limited content archive dating back
aid programs created the “Lawyers to the summer of 2018.
Step Up for Minnesota” campaign But did you know you can also
to recruit volunteer attorneys to access a fully searchable, free-to-
meet acute needs not only in hous- members database of all Bench
ing matters, but also family safety & Bar content dating back to the
and consumer protection. This effort led to the creation of a website to connect attor- magazine’s inception in the late
neys with local legal services agencies to make a difference through pro bono. 1930s? It’s easy:
n Click on the Archives link
Please visit www.lawyersstepupmn.org to start the simple featured on the right side of the
Bench & Bar homepage.
process of making a lasting impact in our state. Training
n Sign in to the MSBA website
opportunities are available, including on-demand resources. when prompted.
Each organization and judicial district are facing unique challenges. Some are n You’ll be directed to an MSBA
urgently looking for housing volunteers, while others have dedicated their entire staff practicelaw page containing a pair
to housing and need assistance in other areas of law. Regardless of your practice area, of links to Hein. Click on the link
there is an important role for you in mitigating some of the fallout for low-income labeled Bench & Bar archives on
families and individuals in Minnesota communities. While the numbers for the metro HeinOnline.
area are staggering—up to 80 eviction cases per day in Hennepin County alone—
outstate areas are in just as much need with fewer attorneys per capita than the metro n Use the search engine to locate
area. Now is the time to start or renew your pro bono practice! the article(s) you’re after. (Note that
you can search the entire database or
narrow your search by volume/year.)
MSBA & THE COURTS UPDATES
n Civil procedure: The MSBA currently n Personal leave petition: In late June, the n Lawyer advertising: The MSBA and
has a petition pending before the court to MSBA Assembly passed a recommendation to the Lawyers Professional Responsibility
amend Minnesota Rule of Civil Procedure amend court rules to facilitate personal leave Board (LPRB) recently filed separate
30.02(f), which addresses subpoena upon certain triggering events such as the petitions requesting amendments to Rule
notices to organizations and the “meet birth or adoption of a child, a health condition 7 of the Rules of Professional Conduct
and confer” requirement. If adopted by experienced by the attorney that renders them related to attorney advertising. The
the Court, the changes will put Minnesota temporarily unable to work, the need to care for changes align with those made to the
in alignment with recent changes to the a family or household member experiencing a ABA’s Model Rules, with one exception
corresponding federal rule. serious health condition, or the death of a fam- contained in the MSBA petition. The
ily/household member. Members of the working MSBA Assembly voted to maintain the
group that formulated the recommendation are current language regarding certification,
drafting the petition with an expected filing date whereas the LPRB’s petition follows the
by the end of the calendar year. Model Rules.
4 Bench&Bar of Minnesota s August 2021 www.mnbar.org
introducing your
2021-2022 MSBA OFFICERS
President President-Elect Treasurer Secretary New Lawyers Chair
Jennifer A. Thompson pAul D. peTerson pAul floyD sAmuel eDmunDs QorTney mcleoD
Thompson Tarasek Harper & Peterson Wallen-Friedman Sieben Edmunds The Office of the Minnesota
Lee-O’Halloran PLLC Woodbury, MN & Floyd PA Miller PLLC Attorney General
Edina, MN Minneapolis, MN Mendota Heights, MN St. Paul, MN
On Demand CLE.
Now Streaming.
Hundreds of hours of CLE.
Over 25 practice areas.
Start Streaming at: www.mnbar.org/on-demand
ProfessionalResponsibility | BY SUSAN HUMISTON
Supervising probation
is a great way to volunteer
P
robation, private or public, is manner. I would also like to highlight the titioner for many years, understands the
an important form of discipline. work of three probation supervisors, who unique challenges, both professional and
Discipline in attorney miscon- share in their own words why you might personal, that solo practitioners face.
duct cases is not to punish the want to consider volunteering.
lawyer; its purpose is to protect the Role of a supervisor
public and the profession, and to deter Selection The role of a probation supervisor
misconduct by the lawyer and others. In all cases, lawyers are asked to varies depending on the type of proba-
Probation fits well within this model. nominate their own probation supervi- tion involved. Most probation supervi-
There are three ways that lawyers are sor, subject to approval by the Office. sors focus on implementation of and
placed on probation. An attorney may Because this is an important relationship, compliance with office procedures and
agree to private probation generally in it helps if the supervising lawyer already review of active case management proce-
lieu of public discipline. This form of dis- knows or has otherwise worked with the dures. All probations generally involve at
cipline requires the attorney’s agreement probationer in some capacity. This is how least quarterly meetings with a supervi-
and the Lawyers Board chair’s approval, attorney Jeff Jacobs came to be a proba- sor, a quarterly report to our Office, and
and is used for instances where an ad- tion supervisor. Mr. Jacobs has more than sometimes monthly reviews of active
monition is not appropriate because the 40 years of experience as an attorney, case files to ensure compliance with pro-
misconduct is not isolated and non-seri- and is with the law firm of Wilkerson, bation terms. Most probationers embrace
ous, but a period of supervised practice is Hegna, Kavanaugh & Johnston in Edina. the opportunity to refine client-related
warranted. Public probation is ordered as Mr. Jacobs was approached in 2020 by practices, and after initial meetings the
part of public discipline, and lawyers are an attorney he knew from the commu- time spent in active supervision is often
frequently placed on public probation nity to serve as the attorney’s probation minimal. Mr. Jacobs estimates that he
following reinstatement to the practice supervisor. spends three to five hours on a quarterly
of law after a period of suspension or dis- Mr. Jacobs was unfamiliar with the basis now that he and his supervisee
barment. Probation terms are generally process but was happy to try to help. have gotten into a groove and reports
two years, but this can vary. They can be After discussions with our Office about that it has not been an imposition on
unsupervised or supervised. what probation entails, Mr. Jacobs agreed his time at all. Other probations can be
In 2020, there were 88 open proba- to serve as a probation supervisor for two more challenging.
tions, most of years and is very glad he did. Mr. Jacobs For example, immigration attorney
them supervised. reports that his supervisee has taken the Leslie Karam, managing attorney at
Recently a reader Board’s probation order and the require- Karam Law in the south metro, was
wrote me to ments to heart, and this experience has recruited to supervise another immigra-
suggest a column been equally as rewarding for Mr. Jacobs, tion attorney. Ms. Karam dedicated a lot
on probation who has used this opportunity to improve of time to assist her supervisee in setting
supervisors. I his own practice. Communication defi- up good office practices that would help
thought this was ciencies were the issue that troubled Mr. to assure an ethically compliant practice.
a fantastic idea, Jacobs’ supervisee, and through regular Ms. Karam believes strongly that “we are
SUSAN HUMISTON because I know quarterly meetings, Mr. Jacobs has seen all human and humans make mistakes.
is the director of the that many people improvement in his supervisee’s practice. We do not have to be defined by our
Office of Lawyers are not aware of Sometimes probationers are unable mistakes; rather we should be judged by
Professional this part of the to find a volunteer, and in those cases our response when things go wrong.” Ms.
Responsibility and attorney discipline the Office turns to a roster of volunteers Karam approached her probation role as
Client Security system, and we who have previously served as volunteer an observer, mentor, and ally, aiming to
Board. Prior to her are always looking supervisors. One such volunteer is Judith help her supervisee develop better ap-
appointment, Susan for volunteers to Rush, director of mentor externship pro- proaches to lawyering. Despite receiving
worked in-house serve as proba- grams at the University of St. Thomas the gift of a lot of Ms. Karam’s time and
at a publicly traded tion supervisors. School of Law. Ms. Rush, a former guidance, her supervisee was unable or
company, and in Let’s cover what LPRB chair, has successfully supervised unwilling to make the improvements
private practice as a is involved in this several probationers with an emphasis that were needed; ultimately her super-
litigation attorney. process and why on lawyers who struggle with lawyer visee continued to have issues and re-
SUSAN.HUMISTON you might want to wellness issues that affect their ability to ceived additional discipline. Sometimes,
@COURTS.STATE.MN.US consider volun- competently and ethically practice law. as Ms. Karam notes, a career change may
teering in this Ms. Rush, having worked as a solo prac- be best for all involved.
6 Bench&Bar of Minnesota s August 2021 www.mnbar.org
Why volunteer? profession as highlighted in the Preamble benefited greatly from mentors and advi-
“Lawyers who agree to probation are (para. 6) to the Rules of Professional sors who have helped us course-correct
not ‘bad’ lawyers—they are typically Responsibility. when needed. Who among us does not
lawyers who haven’t had mentoring or Most probations end successfully for need encouragement, support, and a
haven’t been able to take the time from both the supervisee and the supervi- helping hand at times? If you would like
practice to institute and internalize best sor. Only a few probationers have issues to learn more, please call our Office at
practices, or have encountered signifi- while on probation, and everyone is sorry 651-296-3952.
cant challenges in their lives that have to see this happen. Supervisors serve And if you are approached by a law-
impacted their ability to serve clients,” without compensation, but as noted by yer to serve as their supervisor, consider
according to Ms. Rush. “Supervising several volunteers, it is a rewarding form saying yes. Thank you to everyone who
their probation gives me an opportunity of service to the profession. Another has answered the call to serve as a proba-
to assist them in taking the time to focus statistic that is important to note—most tion supervisor within the discipline sys-
on practice management, client service, discipline is received by experienced tem—the profession is stronger because
and integration and internalization of attorneys. In typical years, practitioners of you. If being a probation supervisor is
the Rules of Professional Conduct.” Ms. with between 11-30 years of experience not your cup of tea, consider volunteer-
Karam agrees: “Probation supervisors receive the most discipline. I’m not sure ing for a local district ethics committee.
introduce the opportunity to learn from we know all the reasons for this, but I It is a fantastic way to learn the ethics
past mistakes and grow professionally will always be a strong believer in “there rules as well as a great service to the pro-
into stronger advocates and advisors to but for the grace of God go I.” fession. Please don’t forget we are always
our clients.” Each volunteer I spoke with looking for non-lawyers to volunteer. If
for this column believed the investment Conclusion you know a non-lawyer who is interested
of time was well worth it as a service to If you are looking for a way to invest in the law and ethics, send them our
the profession and as a way to strengthen in the profession, consider volunteering way. Finally, thanks to Bob Beutel for
their own practices. It is also a concrete as a probation supervisor. Mistakes hap- recommending this topic. If you have
and meaningful way to strengthen the pen, life can be hard, and practicing law suggestions for future columns, please let
quality of service rendered by the legal is a challenging career. Many of us have me know. s
R
Conventional wisdom says,
“Don’t put all your eggs in one basket.”
MLM thinks otherwise.
Lawyers’ professional liability insurance is all we do.
As a result of doing one thing, we do that one thing well.
At MLM “here today, here tomorrow” is more than just a motto and our financial strength is your best defense.
Get a no-obligation quote today!
Chris Siebenaler, Esq.
612-373-9641
csiebena@mlmins.com
ExclusivEly EndorsEd by thE MsbA www.mlmins.com
Protecting Your Practice is Our Policy.®
www.mnbar.org August 2021 s Bench&Bar of Minnesota 7
MN Bench and Bar 2020
Law&Technology | BY MARK LANTERMAN
Security is a team game
L
ast month I discussed the im- Dedicated security teams have
pact of President Biden’s several critical responsibilities,
recent executive order including: oversight of imple-
on national cyberse- menting best practices; man-
curity. The order comes at a agement of projects affecting
particularly critical time for cybersecurity objectives; facilitat-
the United States, in light ing communication; minimiz-
of recent data breaches ing siloes in the organization;
affecting several critical conducting documentation;
sectors. Apart from the and establishing change
federal government, it control processes, among
is evident that stan- others. This is a mission
dardization, awareness, distinct from many aspects
and investment in new of day-to-day operations. In
technologies are key components of keeping up with the secu- the hustle and bustle of working to manage the “convenience”
rity demands of an ever-changing landscape. side of the technologies on which we rely, IT departments may
In 2020, remote work environments and the cyber threats not always have the resources required to manage the many
that proliferated throughout the pandemic greatly changed demands of a healthy security posture.
business operations for many organizations. Even as many A recently discovered breach illustrates the importance of
businesses resume “normal” in-person work, many adjustments oversight in maintaining strong cybersecurity. A large web host
made during the past year may have lasting effects. Work-from- provider, DreamHost, “was left open online earlier this year,
home policies and the challenges brought about by covid-19 leaking names, usernames and email addresses… The data ap-
required many organizations to review and improve their peared to date back at least three years to 2018, though it’s un-
cybersecurity postures. Even so, according to a recent study, clear how long the database was openly accessible.”2 Equipped
“Nearly 80 percent of senior IT and IT security leaders believe with this kind of information, spear-phishing attacks or other
their organizations lack sufficient protection against cyberat- social engineering campaigns are easy enough to execute. Using
tacks despite increased IT security investments made in 2020 some of the stolen information, a cybercriminal can tailor a
to deal with distributed IT and work-from-home challenges.”1 phishing email to gain access to more data.
This discrepancy underscores the fact that increased financial Though DreamHost was quick to secure the database once
investment does not necessarily correct already-existing prob- it was alerted, it would seem that improving oversight and
lems in an organization’s security culture. Nor does it automati- communication regarding cybersecurity practices would help to
cally increase internal confidence in an mitigate the possibility of future events. In addition to govern-
organization’s security posture. ment entities, attacks on key sectors and critical infrastructure
Despite the rise in cybercrime and an may also yield catastrophic results. For all organizations, cyber
increasingly complex web of cyber risks, risks may have an immense negative impact on business opera-
many organizations are delegating a job tions and may cause long-term damage that includes reputa-
that rightfully belongs to dedicated secu- tional and financial harm.
rity teams to technical support staff who Cybersecurity is often relegated to the IT department,
are already busy with other work and though cyber threats and risks are cross-organizational con-
less experienced with respect to secu- cerns. Dedicated teams are often instrumental in managing
MARK LANTERMAN rity threats. Even though cybersecurity incident response, but they are equally essential in providing
is CTO of Computer professionals are greatly in demand, po- critical leadership through proactive measures and securing
Forensic Services. sitions are often filled for the sake of the top-down management support for cybersecurity initiatives. De-
A former member title, and not for the successful planning, pending on the size of the organization or firm, outsourcing this
of the U.S. Secret execution, and maintenance of strong work may be a beneficial alternative. From helping to ensure
Service Electronic cybersecurity plans. This practice often proper database configurations to keeping key stakeholders in-
Crimes Taskforce, occurs in organizations that equate com- formed of new IT projects, cybersecurity teams can help take an
Mark has 28 years pliance with security—essentially it in- organization from a laissez-faire culture to a strong and actively
of security/forensic volves filling a position without provid- supported security culture that better minimizes cyber risk. s
experience and ing the necessary support and resources
has testified in over for security initiatives. Or organizations Notes
2,000 matters. He is may arbitrarily assign cybersecurity titles 1
https://www.forbes.com/sites/chuckbrooks/2021/03/02/alarming-cybersecurity-
a member of the MN to existing employees within the IT stats-------what-you-need-to-know-for-2021/?sh=1ea696ba58d3
Lawyers Professional department for the purpose of satisfying 2
https://www.forbes.com/sites/thomasbrewster/2021/06/24/one-of-the-biggest-
Responsibility Board. compliance requirements. hosting-companies-in-the-world-leaks-815-million-records-of-website-
data/?sh=75dad660110d
8 Bench&Bar of Minnesota s August 2021 www.mnbar.orgMSBA MEMBERSHIP Members
Adding value to your career and the profession
15,037
MSBA members come together
to learn, to share, to teach, and
to advocate for the profession.
Online Sections Legislation
Communities 36 practice areas with 100+ bills monitored
39,000 hundreds of opportunities for
professional development.
or actively lobbied at the
Minnesota State Legislature.
new discussions posted in
MSBA online communities.
Publications Pro Bono
20,000+ 86,000
hours of pro bono services by
attorneys and legal
thought-leaders read
Bench & Bar of Minnesota
757
MSBA North Star members =
magazine each month.
$21.5 million
market value.
Mock
Directory Trial
Savings $1,800+ 10,000 2,400
estimated annual savings searches per month for members and high
through MSBA membership. legal representation on school students participate in
MN Find a Lawyer directory. the MSBA Mock Trial program.
CLE 12,000+ 425 CLE 125 hours of Certification
participants at Section CLE, hours offered, On Demand CLE.
658 MSBA Board Certified
networking and social events. including... Legal Specialists.
Reflects
2020-21
data
Membership Value =
a number that can’t be crunchedNewLawyers | BY CARRIE OSOWSKI
Client relationships are hard work.
My dad taught me they’re worth it.
B
efore he retired, my dad had a came home and he was showing them dad was hesitant to approach the project
decades-long career running his his progress, almost no topic was off the as requested, as he was concerned that
own construction business. My table, sometimes to my embarrassment. the pattern would overwhelm the small
parents divorced when I was six, While I do not recommend taking his space. He explained his concerns to the
so I spent my dad’s summer parenting “anything goes” approach to non-work- client and proposed an alternate design.
time weekdays on job sites. As a result, related chats with clients, you should Ultimately the client chose the design
I observed my dad’s work ethic as he still be able to have non-case-related proposed by my dad, and every day we
drove over an hour each way to jobs, his conversations with your clients. worked there, they raved about how
leadership skills as he directed his work As a family law attorney whose par- happy they were with his suggestion. Not
crew, and his creative talent as he built ents divorced when I was six and agreed all clients took my dad’s suggestions, but
or remodeled beautiful buildings. But to joint legal custody when I was nearly my dad was able to complete each job
the most valuable lessons I learned from 18, I have plenty of my own experiences knowing the client was presented with
working with him had nothing to do I discuss with clients. Sharing my stories all available options, and they still ended
with his physical labor. helps demonstrate to clients that I really up happy with his work.
Nearly every customer my dad do understand what they are experienc- In meeting with clients, I occasionally
worked for came to have a personal re- ing. But it’s not necessary to share a must tell one, “The judge won’t order
lationship with him. More than one cus- client’s personal circumstances to build that.” After I explain why, some clients
tomer invited us to have home-cooked personal connections. During client will choose not to bring a motion, or at
meals with them. A couple who owned a intakes, I love to connect with clients least modify their request. Of course,
restaurant near our home hired my dad over shared hometowns or ask questions some clients cannot be swayed from
on multiple occasions to remodel their about interesting job titles. When I have what they want to ask for, and attorneys
home as well as their restaurant. We clients who are celebrating sobriety mile- must abide by the client’s decisions (at
were frequently invited to the restaurant stones, I vocally celebrate their success least when it isn’t possible to withdraw
after closing time to have special meals, with them. While waiting for hearings from the representation). In cases where
and they even invited us to both of their to start, I talk to clients about numer- clients are asking for the improbable, I
children’s weddings. As a child, my dad’s ous subjects, from how the Minnesota advise them as much in writing. If I am
close client connections seemed like the Twins are doing to happier topics, such lucky, I will be wrong, and the judge
default model for professional relation- as their plans for the coming weekend. will grant my client’s request. Even if I
ships, but as a practicing attorney, I have But as many of you may know from your am right, the client who knows what to
realized that is not own experiences as the customer, there expect will be less angry about their loss
the case. Creat- is a line where friendly conversation than the client who thinks their case is
ing close, trusting becomes too much. That line is different a slam dunk. I was reminded of the im-
relationships with for every attorney and every client, but portance of setting realistic expectations
clients requires if your client is starting to look bored or recently, when a client told me I changed
hard work. When offended, you have crossed it. his opinion of attorneys because I walked
it’s done right, him through how he would lose on the
the rewards are Set realistic expectations pending matter so he could reach a fully
immense. Sometimes clients want outcomes informed agreement instead of taking his
that are impractical, if not impossible. money and going through with a hearing
CARRIE OSOWSKI Be personable The easy way to deal with this is to take he was bound to lose.
graduated from the The most their money, try for that outcome with-
University of St. obvious way to out warning them of the dim likelihood Get the best outcome
Thomas School of create a personal of success, and run for the hills the mo- While personal connections help in
Law in 2015. She connection with a ment you get the court’s order. This may building a professional reputation, the
is an associate at- client is to be per- be a good way to accrue billable hours if outcome also matters. My dad often
torney at Dittrich & sonable: People business is slow, but it’s not a good way subcontracted for a company that did
Lamers, P.A., where like to work with to create a lasting stream of business. restoration work, and one day when we
she exclusively prac- people they like. One of my favorite projects my dad went to their office to get the details
tices family law. My dad worked completed was a tile inlay in an entrance for a project we were fixing, we were
CARRIE@ hard during busi- hall. The client wanted nearly the entire greeted by the echoing shout “Super-
DITTRICHLAMERS.COM ness hours, but floor space to consist of intricate tiles, man is here!” I quickly found out my dad
when a client so the floor would look like a rug. My had been their go-to subcontractor to
10 Bench&Bar of Minnesota s July 2021 www.mnbar.orgfix subpar work by the company’s own me to anyone who needed a family law excellent representation with a demean-
employees. attorney. or she appreciated.
Unfortunately, attorneys do not have Attorneys can also improve the Some clients will make requests that
as much control over the outcome of a likelihood of success by practicing oral you simply cannot accommodate. When
case as contractors have over their work, argument and questioning techniques, that happens, withdrawal is usually an
but we can still have impact on how a putting in good research, and writing option. I have occasionally checked Min-
client perceives the outcome. If an attor- well. A couple of years ago I argued nesota Rules of Professional Conduct
ney does not spend any time while wait- against a spousal maintenance modifica- 1.16 to determine whether I may with-
ing for hearings preparing the client, and tion in a crowded courtroom. When I draw from a case. When I am not sure
only focuses on talking about personal left with my client and her parents, a if the rules permit me to withdraw, I re-
matters, clients will automatically believe woman followed us out of the courtroom quest an advisory opinion from the Law-
more could have been done in their case, and requested my business card because yers Professional Responsibility Board.
even before the decision is out, because she was so impressed by my oral argu- A five-minute phone call with the staff
they did not see the work being done. ment. As a bonus, my client won both attorney was well worth the headache of
Once in the courtroom, how zealously that motion and the subsequent appeal. listening to my former client’s screaming
you advocate for their case also affects While the lessons I learned from my voicemails disparaging me. Of course,
clients’ perception of outcomes. After I dad work for me, I know they will not there is no substitute for getting a client
had to fill in for another attorney during work for everyone. During a consulta- the best outcome. But when I know for
a custody and parenting time trial, the tion with a potential client, I was asked certain I cannot help the client—wheth-
client told me how much he appreci- if I would be joking around with oppos- er it is because of the area of law, where
ated that I was representing him because ing counsel at mediation. I was taken jurisdiction lies, or simply because I lack
of how strongly I made objections and aback by this question, and ultimately the requisite knowledge—I am honest.
questioned the other party. He sent me the client did not retain me. This client I would rather my client get the right
several emails reiterating how much was not wrong for wanting her case to outcome with another attorney than the
he appreciated me fighting for him and be handled this way, and I am sure the wrong one with me. s
saying how he would be recommending attorney she did retain provided her with
2020 – LEGAL ETHICS
IN A WORLD TURNED
UPSIDE DOWN
Ethics Issues Raised by the Pandemic, George Floyd,
and Challenges to the Presidential Election
The 11th edition of MINNESOTA LEGAL ETHICS features broad discussions
of the legal ethics issues raised by the tumultuous issues of the day.
• What are lawyers’ responsibilities under the rules—as public citizens and as
guardians of the rule of law? How are these issues presented in times of crisis?
• How should discipline complaints against lawyers challenging the presidential
election be handled?
• What responsibilities do lawyers have to each other in times of pandemic?
• How should we respond to social challenges of equity?
An ebook
The 11th edition also provides customary updates in applications of the Rules of published by
Professional Conduct—in discipline and other case law, in ethics opinions and
articles, and in proposed rule changes, all with a focus on Minnesota law.
the MSBA
written by
William J. Wernz
Free download available at: www.mnbar.org/ebooks
www.mnbar.org August 2021 s Bench&Bar of Minnesota 11THE GHOST OF
WATER WARS
FUTURE
The Great Lakes Compact and
the coming freshwater crisis
By Jeremy P. Greenhouse
Water in the south is abundant, water in In the United States,
the north scarce. If possible, it would be as in China, freshwater re-
fine to borrow a little.1 sources are unevenly dis-
— Chairman Mao Zedong tributed. Demand in many
H
areas of the country, partic-
alf a century after Chair- ularly in the Southwest, sig-
man Mao reportedly made nificantly outpaces available
this comment in 1952, supply. Here in Minnesota,
northern China’s need for meanwhile, we not only have
water had become more relatively abundant surface
critical than ever. Water supplies in the and groundwater resources—we
Northern Plains—home to over 200 are the Land of 10,000 Lakes, af-
million people, including the megaci- ter all, and the headwaters of the
ties of Beijing and Tianjin—had reached Mississippi River—but also join with
dangerously unsustainable levels. With seven other states and two Canadian
60 percent of the north’s water being provinces in bordering the largest
pumped from groundwater, scientists es- fresh surface-water system on Earth:
timated that the region’s aquifers would the Great Lakes. As climate change
dry up within 30 years. The water table and population growth place mounting
around Beijing alone was dropping by strain on U.S. water supplies, it is not
five meters each year; new wells did not hard to imagine a scenario in which poli-
reach groundwater until they were half a ticians from water-starved states, faced
mile deep.2 with struggling agricultural irrigation
To address this looming crisis, China systems and angry, thirsty voters, propose
finally acted on Chairman Mao’s words, a Mao-inspired water diversion proj-
undertaking an infrastructure project ect—north to south in this instance—to
of jaw-dropping proportions to annu- “borrow” water from the Great Lakes.
ally move 12 trillion gallons of water Indeed, similar ideas have been proposed
from the Yangtze River in the south to and seriously considered before, and
the Yellow River basin in the north. The there are several ongoing, large-scale di-
project, known as the South-to-North versions involving Great Lakes water.
Water Diversion Project, connects four But any new scheme to siphon water
of China’s major rivers, includes three from the Great Lakes and divert it to
lines spanning 12 provinces; shuttles other parts of the country would have to
water through 1,900 miles of canals and overcome a significant legal hurdle: the
tunnels; and bears a price tag of over $80 2008 Great Lakes-St. Lawrence River
billion USD.3 Two of the three planned Basin Water Resources Compact, a re-
lines have been completed, and as of markable interstate agreement reached
2018, Beijing was importing two-thirds by the Great Lakes states for the precise
of its tap water from southern China.4 purpose of preventing such diversions.
12 Bench&Bar of Minnesota s August 2021 www.mnbar.orgTHE CENTURY OF WATER cause of climate change. Changes in water
supply will vary widely in different regions.
We have left the century of oil and entered For example, whereas some water basins in
the century of water. the Northwest, the Great Basin,9 and Cali-
—Peter Anin, The Great Lakes Water Wars fornia are expected to see increased water
yield10 over the next 50 years, a majority of
Make no mistake about it: There are basins will experience decreases, with par-
both current and looming freshwater cri- ticularly severe decreases in the Southwest,
ses internationally and in the U.S., and the middle to southern Great Plains, and
they are being exacerbated by popu- Florida.11 Within a few decades, as a result,
lation growth and climate change. many regions of the country may see their
According to the United Nations: water supplies reduced by a third as the de-
• Approximately 4 billion mand for those dwindling supplies contin-
people, representing nearly ues to grow.12
two-thirds of the world’s Even this summer, the surging impacts
population, experience se- of population growth and climate change
vere water scarcity during have been on full display in the Western
at least one month of the half of the U.S., which has been in the
year. grips of a historically severe drought.13 New
• A third of the world’s Mexico farmers along the Rio Grande have
biggest groundwater been asked not to plant this year; North
systems are already in Dakota ranchers are trucking water and
distress. feed for livestock because their rangelands
• By 2030, an estimat- are so dry; low levels in the Lake Mead Res-
ed 700 million people ervoir on the Colorado River are likely to
worldwide could be dis- lead to cutbacks in Arizona, Nevada, and
placed by intense water other states; and California freshwater res-
scarcity. ervoirs contain only half as much water as
• By 2040, one in four of usual for this time of year. These impacts,
the world’s children under scientists say, are made worse by climate
18—some 600 million in change.
all—will be living in areas of The Earth’s Future report also evaluated
extremely high water stress.5 potential avenues for mitigating this emerg-
ing water crisis. In most water basins, for
The United States is also run- instance, agricultural irrigation constitutes
ning out of fresh water. According to over 75 percent of annual consumption.14
a 2019 federally funded report in the Reducing the water used for irrigation could
science journal Earth’s Future, of the free up water resources to ease critical im-
204 water basins that supply renew- pacts on higher-valued water users, such as
able fresh water6 to most of the coun- those in the municipal, industrial, and en-
try, over one-third may be unable to meet ergy sectors. While a 2 percent reduction
monthly demand within the next 25 years, in agricultural irrigation could make up the
a proportion that grows to almost half by projected water shortfall in some basins, in
2071.7 This projected shortage, which takes other basins—such as the Southwest and the
into account current trends toward lower- central and southern Great Plains—the
ing per-capita water usage, will be driven by reduction would need to be 30 percent.15
two principal factors. The first is population Achieving such a reduction in the nation’s
growth: The number of people in the U.S. is “bread basket” without raising serious con-
expected to rise from 308 million people in cerns about food security would be a daunt-
2010 to 514 million in 2100,8 and this will ing task indeed.
naturally increase demand for fresh water. “Mining” groundwater is another meth-
The second factor driving water short- od that has been and can be used in the U.S.
age is climate change. While the predicted and across the globe to alleviate shortages
impacts from climate change on water sup- of renewable freshwater resources. A cer-
ply are complicated—for example, water tain amount of rain and snow falling on the
losses in some areas from drought and in- earth percolates to and recharges under-
creased temperature/evaporation must be ground aquifers. In the U.S., groundwater is
balanced against water gains in other areas the source of drinking water for about half
from greater precipitation—the Earth’s Fu- of our total population and nearly all our ru-
ture report estimates that overall, there will ral population, and it provides over 50 bil-
be a decrease in the freshwater supply be- lion gallons per day for agricultural needs.16
www.mnbar.org August 2021 s Bench&Bar of Minnesota 13When the amount of groundwater pumped out for these pur- THE GREAT LAKES: VAST BUT FINITE
poses is equal to or less than the amount of precipitation perco-
lating into the groundwater, the use is sustainable; this amount As the wind slips over your waters,
of groundwater is generally included when calculating avail- Sing to me sweetly Superior,
able renewable freshwater resources. But when groundwater is Sing me a Chippewa story,
pumped at rates exceeding the natural precipitation recharge, it Under the quarter moon
diminishes water levels that may have taken centuries to build —Carla Sciaky, Under the Quarter Moon
up and will take centuries to recharge. Used in this manner,
groundwater is essentially a nonrenewable resource, like oil or The Great Lakes—Superior, Michigan, Huron, Erie, and On-
minerals—hence the term “groundwater mining.” tario—came into being during the last ice age, when the weight
The Earth’s Future report noted that groundwater mining of the mile-thick Laurentide ice sheet carved giant depressions
has been frequently used to supplement renewable freshwater in the earth.21 As the climate warmed approximately 20,000
resources in the past and could be used to help cover the an- years ago, the ice melted, filling these depressions and forming
ticipated freshwater shortfalls in the 21st century.17 But the ap- the Great Lakes. Because of this geologic history, Great Lakes
proach is fundamentally problematic, to say the least, given the water is essentially a non-renewable resource. Only 1 percent of
already depleted state of many aquifers, and could “hasten[] the the Great Lakes’ water moves through the system each year; the
arrival of the day when groundwater mining is no longer eco- remaining 99 percent is original glacial water.22 Once that water
nomically viable.” is removed from the Great Lakes Basin—i.e., the lakes them-
Groundwater mining in the Ogallala Aquifer demonstrates selves plus adjacent land areas where surface water and ground-
the magnitude of the problem. The aquifer underlies approxi- water flow back toward the lakes—it is basically gone for good.
mately 175,000 square miles of land in parts of eight states, in- The Great Lakes are enormous. Covering over 94,000 square
cluding Colorado, Kansas, Nebraska, New Mexico, Oklahoma, miles and holding some 6 quadrillion gallons of water, the lakes
South Dakota, Texas, and Wyoming, and provides 30 percent and their connecting channels comprise 21 percent of the
of the nation’s irrigation groundwater.18 As of 1960—before the world’s supply of fresh surface water, and no less than 84 per-
advent of large-scale groundwater-pumping agricultural irriga- cent of fresh surface water in North America.23 They provide
tion systems in the region—only 3 percent of the aquifer’s wa- drinking water for more than 48 million people in the U.S. and
ter had been tapped.19 By 2010, an estimated 30 percent of the Canada, directly generate more than 1.5 million jobs and $60
Ogallala aquifer had been depleted; based on existing trends, an billion in annual wages, serve as the foundation for a $6 trillion
additional 39 percent will be gone by 2060.20 Once groundwater regional economy, and generate more than $52 billion annually
in the Ogallala aquifer is sucked dry, it would take between 500 for the region from recreation on the lakes.24
and 1,300 years to refill. For many residents of Minnesota and other Great Lakes
Given these challenges to finding adequate supplies of fresh states, tribes, First Nations, and Canadian provinces, however,
water, it is perhaps not surprising that the eyes of water-starved the lakes represent more than just hydrogeologic and economic
parts of the U.S. have occasionally turned north to the world’s facts and figures. They are a fundamental part of who we are. For
most magnificent repository of fresh water: the Great Lakes. generations, those of us living in this part of the world have been
moved by Lake Superior’s transcendent waves crashing against
the North Shore. We have found solace wrapping our fingers
around one of its cold stones, smoothed by centuries of waves.
We have been enchanted by the lake’s changing moods, and
THE GREAT have contemplated life sitting on its windswept rocks, staring
LAKES BASIN out at the water. In short, for so many of us the Great Lakes are
nothing short of sacred, which makes the prospect of someone
taking large amounts of water from “our” Great Lakes to use
elsewhere particularly galling. Yet this exact scenario has been
discussed for decades.
Only 1 percent of the Great
Lakes’ water moves through
the system each year; the
remaining 99 percent is
original glacial water. Once
that water is removed from
the Great Lakes Basin, it is
basically gone for good.
14 Bench&Bar of Minnesota s August 2021 www.mnbar.orgLow level of Lake Mead (border of Arizona and Nevada).
Low levels in the Lake Mead
Reservoir on the Colorado River are likely to
lead to cutbacks in Arizona, Nevada, and other
states; and California freshwater reservoirs
contain only half as much water as usual for this
time of year. These impacts, scientists say, are
made worse by climate change.
WATER WARS governors of Great Lakes states. According to a 2001 Associ-
ated Press article, for example, President George W. Bush said
I’m from Texas and down there we understand that whiskey is for he wanted “to talk to Canadian Prime Minister Jean Chre-
drinking and water is for fighting over. If we get [control of] it in tien about piping [Great Lakes] water to parched states in
Washington, we’re not going to be buying it. We’ll be stealing it. You the west and southwest.” Seven years later, New Mexico Gov.
are going to have to protect your Great Lakes. Bill Richardson, then running for the Democratic presiden-
—Former Republican congressman Dick Armey25 tial nomination against Barack Obama, told the Las Vegas Sun
he favored a “national water policy,” noting that “states like
Chairman Mao is not the only head of state who thought Wisconsin are awash in water.”30 But the abiding example of
large-scale water diversions could be a solution to the unequal the Aral Sea has perhaps done as much as anything to galva-
distribution of a country’s freshwater resources. Perhaps the nize protective sentiments among citizens and leaders in the
most infamous large-scale diversion in modern history is the Great Lakes region. As Peter Anin notes in his excellent book
former Soviet Union’s diversion of water from the Aral Sea— The Great Lakes Water Wars, “the Aral Sea disaster has been
which, in the early 1900s, was the fourth largest inland lake invoked repeatedly by Great Lakes environmentalists as an
in the world, larger than every Great Lake but Lake Supe- ecological rallying cry: an example of what not to become.”
rior.26 At the end of World War I, policymakers in what would Nonetheless, there have been many attempted large-scale
shortly become the Soviet Union decided to divert water from diversions of Great Lakes water over the years—some success-
the Syr Darya and the Amu Darya rivers, the major inflows ful, others not. Perhaps the most prominent ongoing diver-
for the Aral Sea, to irrigate arid regions of Uzbekistan and sion from the Great Lakes is the Illinois diversion (also known
Turkmenistan.27 as the Chicago River diversion), constructed in the late 19th
The multi-decade project succeeded in creating almost century. As Chicago was transformed from a frontier town
10 million new irrigated acres, leading to thriving cotton and to a major city, the Chicago River, which flowed into Lake
rice production. But the impact on the Aral Sea was unimagi- Michigan, became increasingly polluted with raw sewage and
nable. The lake started shrinking in the 1960s and has since industrial wastewater that threatened to foul the city’s fresh-
lost 90 percent of its surface area and 96 percent of its volume. water intake from Lake Michigan. The city conceived a bold
Water levels have dropped by 93 vertical feet.28 Bustling lake- plan. By constructing a canal connecting the Chicago River
side fishing villages became ghost towns whose city docks now to the Des Plaines River, they could reverse the flow of the
overlook sprawling deserts dotted with abandoned fishing Chicago River. Instead of the Chicago River flowing into Lake
boats; the coastline, long-since receded beyond the horizon, Michigan, Lake Michigan would flow into the Chicago River,
is often miles and miles away.29 merging with the river and diluting its pollution before flow-
The words and actions of U.S. political leaders through ing through the canal to the Des Plaines River and eventually
the years have caused significant concern among citizens and entering the Mississippi River just north of St. Louis.31
www.mnbar.org August 2021 s Bench&Bar of Minnesota 15You can also read
