THE TROUBLE WITH EYEWITNESS TESTIMONY - TOWARD A MODEL JURY INSTRUCTION ON WITNESS ACCOUNTS - Minnesota State Bar ...
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OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER I
JANUARY 2020
www.mnbar.org
THE TROUBLE WITH
EYEWITNESS TESTIMONY
TOWARD A MODEL JURY INSTRUCTION ON WITNESS ACCOUNTS
ONE
Profession
One Profession. Minnesota
State Bar
One Day.
Association
Upcoming 2020
Coming Your Way.
One Profession Events
DULUTH 6TH JUDICIAL DISTRICT
January 23, 2020
The MSBA’s One Profession events bring together judges ROCHESTER 3RD JUDICIAL DISTRICT
and lawyers for one day each year to discuss the issues January 31, 2020
and opportunities facing the legal profession around
WILLMAR 8TH JUDICIAL DISTRICT
Minnesota. These programs are open to all lawyers— March 13, 2020
MSBA members and non-members alike.
BEMIDJI 9TH JUDICIAL DISTRICT
Join your colleagues for presentations, panel discussions, March 27, 2020
and conversations with attorney thought leaders. Each
WADENA 7TH JUDICIAL DISTRICT
One Profession event is unique—tailored to reflect the May 8, 2020
interests and concerns of its regional constituents.
COON RAPIDS 10TH JUDICIAL DISTRICT
July 9, 2020
MANKATO 5TH JUDICIAL DISTRICT
September 24, 2020
LAKEVILLE 1ST JUDICIAL DISTRICT
October 30, 2020
CLE credits are available.
For more information visit:
www.mnbar.org/one-profession
“Facing our profession’s toughest challenges
Watch Chief Justice Gildea’s video at www.mnbar.org/one-profession
takes all of us, no matter what part of
Minnesota you call home.”
– Chief Justice Lorie Skjerven Gildea, MN Supreme Court
OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER I
JANUARY 2020
www.mnbar.org
2 President’s Page
20/20 Foresight
By Tom Nelson
4 MSBA in Action
North Star Lawyers
Professional
6 ON THE COVER
Responsibility
Ethical fee agreements THE TROUBLE WITH EYEWITNESS TESTIMONY
Toward a model jury instruction on witness accounts
By Susan Humiston
16 By Julie Jonas, Jevon Bindman, and David Herr
8 Law & Technology
Beyond compliance:
Effective security training
By Mark Lanterman 20
HEALTHY LAWYERS ARE
PRODUCTIVE LAWYERS
The business case for promoting
lawyer well-being
Lawyers who are impaired—whether because of
substance use, diagnosed mental health issues, or
10 Colleague Corner simply garden-variety stress—are more likely to
‘There is incredible commit legal malpractice or violate ethical rules.
value in membership’ By Patty Beck and Alice M. Sherren
Meet Sarah Soucie Eyberg
12 Bonus! 2020 Buyers’ Guide
Products & Services
for Lawyers 27
33 Notes & Trends WORKERS’ COMPENSATION
Landmarks in the law FOR MEDICAL MARIJUANA?
Not So Fast.
47 People & Practice
Member announcements Think the Minnesota Department of Labor
and Industry has settled the issue? Think again.
48 Opportunity Market By Sue Conley and Jeff Markowitz
Classified ads
www.mnbar.org January 2020 s Bench&Bar of Minnesota 1
President’sPage | BY TOM NELSON
20/20 Foresight
Y
ou’re right, of course, those numbers (20/20) often (6) Lawyer health and wellness: January 13 conference, and
accompany the term “hindsight.” So here’s a brief look a spring summit. Be there and be well. “It’s safe to seek help to
back, and a longer look forward. get well.”
OK, Cheryl Dalby, you’ve been CEO of our (7) Health insurance: We’re developing an association-based
combined bar associations for a year now. You’re on: and affordable health insurance program for solo or small
“Thanks, Tom. During 2019 we created new ways for the multi-employee law firms. Hopefully, a June 2020 launch.
bars to collaborate and become more efficient. We’ve combined (8) On-demand CLE: Coming to a screen near you? It’s
staff and our physical offices; we’ve integrated our databases, already at 15 hours of the required 45 hours over three years.
phone systems, accounting systems, and personnel policies A pending petition to the Supreme Court would allow for all 45
and benefits packages. We’re looking at new ways the bars can hours to be “on demand.”
collaborate even more on programming, while maintaining the (9) 2020/2021: Legislative and budget sessions and ABA
distinct identity of each organization.” priorities: Civil Legal Aid funding and attorney salaries.
Dyan Ebert, you’ll be taking up the presidential baton next Student loan forgiveness initiative. Housing and evictions.
June. What think ye? “Civil Gideon,” anyone?
“We will continue to reach out to the legal profession in (10) Hate crimes: Legislation? Attorney General initiative?
Greater Minnesota, to better understand and assist with their First Amendment?
strengths and struggles. We will also address the declining (11) Uninsured attorneys representing clients? Professional
number of attorneys practicing outside of the wider Twin responsibility and ethics issues, and potential rules? Insurance
Cities area. We will mark and celebrate the 100th anniversary availability? Disclosure to clients or the Court?
of the ratification of the 19th amendment, which guaranteed (12) Diversity and inclusion: A professional obligation.
women the right to vote. I look forward to continuing and New strategic plan for MSBA Diversity and Inclusion Council.
strengthening our work on access to justice, lawyer well-being, Continuing support for marvelous and important affinity bar
and member support, engagement, and retention.” associations.
Great. Two terrific leaders. Looking forward to Jennifer (13) Potential MSBA amicus positions: Transgender rights.
Thompson’s and Paul Peterson’s continuing and emerging Family law and custody matters.
leadership, as well. So here’s s’more about what’s on our minds. (14) What to do with dues? Simplify? Lower?
(15) Specialists: Certification? Advertising restrictions?
Twenty topics for 2020 First Amendment.
(1) “One Profession.” All-day gatherings in each of our (16) Solo/small/suburban/Greater Minnesota: Great recent
districts— CLE credits; with the district court judges, private edition of Bench & Bar. Practice management and legal research
practitioners, and public service lawyers alike. tools. Substantive sections. Duluth MN/CLE solo/small summit.
(2) Commemoration of the Duluth Lynchings. In June it’ll (17) New and “vintage” lawyers: New and creative ways to
be 100 years since the murders of Elias Clayton, Elmer Jackson, collaborate across generations.
and Isaac McGhie. Remembrances on June 15 in Duluth, (18) Large, national and international law firms coming to
and June 16 at the Minneapolis Hilton. Guest speaker: Bryan Minnesota. Invasions or evolutions? Non-lawyer ownership
Stevenson of the Equal Justice Initiative, author of Just Mercy, of law firms?
and much more. Stay tuned and please plan on attending. (19) Courthouse security: Lawyer access and parity.
(3) Minnesota Supreme Court Paraprofessional Pilot (20) And more: Immigration; Native American law and life;
Implementation Committee: We have Mock Trial.
to figure out how to serve the tsunami All of which reflects our continuing view that our bar associa-
of pro se litigants coming to our courts. tion is A Great Idea and A Good Deal. It’s a good deal in light of
Our current reality is not sustainable, the benefits and all of the “free stuff” that comes with member-
either from an access to justice or ship. A good investment—from robust practice tools to a con-
a court capacity perspective. Chief stant stream of substantive resources and timely programs. And
Justice Gildea has confirmed that it’s a great idea because of our unique opportunity to lead, speak
we can no longer just “admire the for, support, connect—and protect—our profession. Whether in
problem.” I agree. Minnesota or U.S. legislative hallways, or in our Supreme Court
(4) Mandatory reporting of and District Court conference rooms and social gatherings.
pro bono publico hours and financial Put another way, there is value that you “get” and there are
TOM NELSON is a contributions? Has the time come? values that you support—like excellence and ethics even in the
partner at Stinson LLP Add your voice and views. FYI: I said course of zealous representation; dignity and decency; profession-
(formerly Leonard, “yes” in my December column. alism and civility; diversity and inclusion. There will no doubt be
Street and Deinard). (5) Access to justice: Continuing new and maybe even surprising issues that come our way in 2020.
He is a past president collaboration with the Minnesota As Yogi Berra explained: “It’s difficult to predict things, especially
of the Hennepin County Supreme Court and the Judicial Branch about the future.” But this is our 20/20 vision: optimistic; leaning
Bar Association. on LawHelpMN and a potential and looking forward; trying to see and seize the bright side of our
coalition or “commission.” future together. Happy New Year, and welcome to 2020. s
2 Bench&Bar of Minnesota s January 2020 www.mnbar.org
Official publication of the
Minnesota State Bar Association
www.mnbar.org | (800) 882-6722
Editor
Steve Perry
sperry@mnbars.org
Design & Production
Jennifer Wallace
Advertising Sales
Pierre Production & Promotions, Inc.
(763) 497-1778
MSBA Executive Council
President
Tom Nelson
President-elect
Dyan J. Ebert
Treasurer
Jennifer A. Thompson
Secretary
Paul D. Peterson
New Lawyers Chair
Blair Harrington
Chief Executive Officer
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
© 2020 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@mnbar.org or at the postal address above.
www.mnbar.org January 2020 s Bench&Bar of Minnesota 3
MSBAinAction | BY STEVE MARCHESE
Keeping the Fire Going
MSBA North Star Lawyers talk about pro bono service, commitment, and practice
T
he Minnesota State Bar Association Why is pro bono service I have worked on cases that are
launched North Star Lawyers, its first important to you? outside of my tax practice, in areas
individual recognition program for Woodbury: “The number of un- such as Social Security disability,
members who provided 50 or more hours represented clients demonstrates consumer credit, and criminal ex-
of pro bono service, in 2012. Since that time, the that the answers are beyond the pungements.“
program has provided an opportunity for MSBA to resources of non-profit organiza- Pham: “Given my upbringing, I
recognize the many members who have been meeting tions and government to fill.” have a soft spot for working with
the aspirational standards set in Minnesota Rules of Podpeskar: “The need for rep- inner-city youth, so much of my
Professional Conduct Rule 6.1. resentation can be seen in legal pro bono work relates to serving
Last year the MSBA recognized 934 members clinics where folks present a range that group, which includes, among
who certified they met the program requirements. of family law issues clearly beyond other things, a pro bono class ac-
These members provided over 110,500 hours of total their capacity to address on their tion lawsuit against St. Paul Public
service, with an estimated value of $27.6 million. I own in court. Even half an hour Schools; representing children in
recently contacted a few of those 2018 North Star of service can make a difference in need of protective services through
Lawyers in order to find out a little more about their the success of a case.” the Children’s Law Center of Min-
pro bono work as well as their tips for incorporating Pasternak: “Pro bono work is nesota; and volunteering at the
pro bono into one’s practice. important because access to jus- YouthLink Legal Clinic.”
They included the following individuals: tice cannot be solely based upon Pasternak: “Most of my pro
one’s income. While one would bono work is through legal servic-
Carole Pasternak, Klampe Law Firm, Rochester be appointed a criminal defense es groups—LAOC, SMRLS, and
Pasternak has been a licensed attorney attorney if one could not afford a most recently, an asylum case I
since 1999. About 80 percent of her private attorney, there are many obtained through The Advocates
work is in family law, 20 percent in other areas of law that impact a for Human Rights.”
family immigration. She has been a person’s life as dramatically as a Podpeskar: “I only take refer-
partner since 2008 and serves on the criminal action.” rals from my local provider—cur-
board of Legal Assistance of Olmsted County. Pham: “Doing pro bono service rently LASNEM, formerly the
is important to me because I be- Volunteer Attorney Program—as
Chris Pham, Fredrikson & Byron, PA, Minneapolis lieve in personal community re- I do not want to pick and choose
Pham is a shareholder who works in his sponsibility, which I view as similar between clients that come to me
firm’s business litigation department to corporate social responsibility. I through my regular practice. I
and also co-chairs the firm’s sports & grew up in a low-income, single- meet clients at a sponsored legal
entertainment practice group. parent household in north Minne- aid clinic for brief half-hour ser-
apolis, so I can relate to many of vice and take some of them on as
Lauren Pockl, Briggs and Morgan, Minneapolis the obstacles and adversities that extended representation cases.”
Pockl is an associate in her firm’s en- underrepresented individuals face Pockl: “I seek opportunities
ergy group, where she focuses primarily on a regular basis.” that align with the interests that
on regulatory matters, as well as envi- Pockl: “As a lawyer, I believe I I am not able to live out through
ronmental and natural resource issues. have a professional responsibility my everyday professional work,
to provide legal services to those like criminal matters, courtroom
Tracy Podpeskar, Trenti Law Firm, Virginia that are unable to pay for those appearances, and various other
Podpeskar is a partner in her firm, services, thereby providing ser- areas and aspects of the law that
where she focuses exclusively on family vices for the greater public good.” interest me.”
law and serves on the board of the
Legal Aid Society of Northeastern How do you connect with How do you incorporate
Minnesota. pro bono opportunities? pro bono representation
Woodbury: “I want to take cas- into your practice?
Allison Woodbury, Stinson, LLP, Minneapolis es where the client has the great- Pockl: “I make time to ensure
Woodbury has been a partner in est need. My firm’s Deinard Legal that I am able to fully engage in
her firm’s income tax practice since Clinic provides some of my case the pro bono work that I perform
2012 and does almost exclusively referrals, in addition to Southern as much as I make time to ensure
transactional practice, providing Minnesota Regional Legal Servic- that I fully engage with my day-to-
support to the firm’s corporate lawyers. es (SMRLS) and the Minnesota day legal work. The relationships
Volunteer Lawyers for the Arts. that I have built, the skills that I
4 Bench&Bar of Minnesota s January 2020 www.mnbar.org
have harnessed, and the wide Woodbury: “Consistency is up a pro bono file in an area of it makes. Most cases are not
variety of legal areas that I the key. I always have some- law that is of interest to you. It terribly time-consuming. And
have covered as a result of my thing active in my pro bono does not need to be anything reaching the 50 hour pro bono
pro bono work have all con- caseload. It is a practice man- complex or time-consuming, annual hours is likely only 2-3
tributed to me being a better agement skill to manage my but something that is mean- cases per year.”
corporate attorney and firm workload. If I waited for the ingful. Experiencing firsthand Woodbury: “Find a lawyer
employee.” ‘right’ time to take a case, it that pro bono service can be you know who is active as a
Pasternak: “I always have would never happen and that performed alongside the daily volunteer. Ask him or her how
at least one full representa- time would be eaten up by demands of an attorney’s prac- they choose activities, balance
tion pro bono case on my other matters.” tice is important when decid- responsibilities in practice and
active case list. I also pro- Pham: “Two things: experi- ing if or how much pro bono got started. There are varying
vide short consultations for ence and networking. By do- work to take on.” levels of commitment. The
LAOC’s Family Law Clinics ing pro bono work, I’ve gained Podpeskar: “Pro bono is a point is to get started and not
and Father’s Project—each is significant experience in the good opportunity for new law- put it off.”
a 30-45-minute consultation. courtroom and in front of cer- yers starting out to get their Pham: “Just jump in! I
I believe that the clinic is not tain judges/magistrates. And feet wet and find out what know a lot of lawyers may be
income based, just a signup. I networking goes hand-in- they are interested in. Volun- hesitant because the legal area
serve on the LAOC board as hand with that experience— teer attorney programs can may be unfamiliar, or if they’re
the vice chair, and help with additional opportunities to connect new lawyers to volun- transactional lawyers, then the
fundraising efforts to keep meet lawyers, judges, and oth- teer opportunities and provide hesitancy is because they’ve
LAOC in the black.” er professionals.” support by connecting them never been to court, have no
Podpeskar: “I treat every to more experienced mentors. experience ‘litigating,’ etc. But
pro bono advice client like any What advice do you have In greater Minnesota, rela- so much is learned through
other client. The local provid- for lawyers interested in, tionships matter a lot and it’s hands-on experience in any
er staff knows my limits and but not currently doing, hard to say no to someone you event, so jump in and keep in
spreads out referrals. I have pro bono service? know in your community.” mind that although you may
never felt burdened by refer- Pockl: “For those who Pasternak: “For those who be inexperienced, nervous,
rals from legal aid and, occa- are interested but concerned may not be sure about pro and/or uncomfortable, imag-
sionally, I will say no if I can’t about time management, I bono, I would say take one ine how the pro bono clients
handle the matter.” would advise simply picking case and see what a difference feel.” s
The New Referral Service
You Oughta Know
The Hennepin and Ramsey county bar associations are merging
their existing referral services into a new and enhanced program, the
Minnesota Lawyer Referral and Information Service (MNLRIS).
The creation of this program allows us to consider new, innovative
ways to meet the needs of modern legal consumers. Now is the
time to get involved!
Trained members of the MNLRIS staff communicate with over
What you can expect: 1000 legal consumers a month connecting them with vetted
Expanded Marketing to member attorneys or other appropriate resources. In previous
Attract Clients years, our referral services have delivered over 1.5 million dollars in
Pre-screened Referrals business. Our enhanced new program will only continue to expand.
Delivered by Trained Staff Your business cannot afford to miss out.
An Expanded Reduced Fee
Program with an Updated
Fee Schedule
New Opportunities for
Unbundled Services
More Narrowly Tailored
Client Referrals
Client Line: 612-752-6699 Attorney Line: 612-752-6660
Online Opportunities for
Self-Referrals mnlawyerreferral.org
www.mnbar.org January 2020 s Bench&Bar of Minnesota 5
ProfessionalResponsibility | BY SUSAN HUMISTON
Ethical fee agreements
T
he start of a new year is a good lecting an unreasonable fee. The agree- signed by the client notify the client
time to dust off your standard ment for an unreasonable fee can itself of five specific things.7 The required
fee agreement to ensure it be an ethics violation, even if it’s unpaid. notifications are set forth in the rule, and
complies with the ethics rules. Describing any fee as nonrefundable you must include all five. Please review
Every year attorneys receive discipline or earned upon receipt is expressly the text of the rule to ensure your flat fee
for noncompliant fee agreements. prohibited by the ethics rules.5 This rule agreement is compliant. And—hint!—
Let’s make sure it doesn’t happen to has been in place since 2011, yet every watch your language: Telling a client
you in 2020. year discipline is imposed for flouting it. they “might” receive a refund if all of the
Please help us spread the word. If you see work is not performed is inconsistent
The basics anyone with such agreements, remind with the required notification that the
The ethics rules require you to have them of the rules. You do not need to client “will” receive a refund if all of the
a written fee or retainer agreement report them to this Office; just help work is not performed. Please do not
signed by the client in three situations: out your fellow bar member. It would try to mislead your clients by needlessly
contingency fee cases, flat fee cases in be deeply gratifying if 2020 was the wordsmithing the notifications required
which you place the advance fee in your year that no one received discipline for by the rule.
business account rather than your trust violating this rule. If you wish to charge an availability
account, and cases in which you charge fee, please consult the rule,8 and do
an availability fee.1 In all other cases, yourself the favor of consulting experi-
written fee agreements are strongly FLAT FEE HINT! enced ethics counsel. I have yet to see
encouraged but not expressly required by a compliant availability fee agreement
the ethics rules. Watch your language: that someone is willing to pay; too often
If you do not have a written fee they are just impermissible attempts to
agreement, you still must communicate Telling a client they “might” designate a portion of a flat fee as non-
to your client the scope of the refundable. Remember, if you agree to
representation and the basis or rate of receive a refund if all of represent someone on a particular matter
the fee and expenses for which the client that is pending, you are already agreeing
will be responsible.2 Under the rules, the the work is not performed to be available for representation. Avail-
client must sign the agreement in the ability fees are separate and apart from
cases where written fee agreements are is inconsistent with the any compensation for legal services to be
required—not a family member or friend, performed, which is why they are rarely
but the client. And a “signed” writing required notification that valuable to a client.
can “include[] If you use a contingency fee agree-
an electronic the client “will” receive a ment, make sure to specify the kinds of
sound, symbol or expenses that will be deducted from any
process attached refund if all of the work is recovery, and whether the expenses will
to or logically be deducted before or after the contin-
associated with not performed. gent fee is calculated.9 Most contingency
a writing and fee agreements we see have the first re-
executed or quirement covered, but attorneys some-
adopted by a In the case of a flat fee, you may times omit the second. I’m sure it will
SUSAN HUMISTON person with the ethically describe the advance fee not surprise you that clients expect you
is the director of the intent to sign the payment as the lawyer’s property to deduct expenses from the award, and
Office of Lawyers writing.”3 subject to refund, but it cannot be then calculate your percentage recovery
Professional earned upon receipt, unless the client is on the lower remaining sum, but that is
Responsibility and The content actually paying after all work has been rarely how you plan to do the math.
Client Security The rules also completed. Ordinarily, all fees paid in The rule requires you to be specific.
Board. Prior to her establish content advance of legal services being performed If you plan to charge clients for the
appointment, Susan requirements and must be placed in trust, and only cost of copying or retrieving their files,
worked in-house prohibitions. Of withdrawn as earned with notice to the remember that a client must agree to
at a publicly traded course, fees must client.6 In order to treat a flat fee paid in that in writing prior to termination, so
company, and in be reasonable.4 advance as the lawyer’s property subject your fee agreement is a good place to
private practice as a And this rule is to refund (and thus eligible to be placed secure your client’s agreement to this
litigation attorney. expansive—it in a business account and spent rather expense.10 You also cannot ask your
SUSAN.HUMISTON prohibits making than placed in a trust account until work client to prospectively limit liability for
@COURTS.STATE.MN.US an agreement for, is complete), Minnesota’s ethics rules your malpractice unless the client is
charging, or col- require that the written fee agreement independently represented.11
6 Bench&Bar of Minnesota s January 2020 www.mnbar.org
(The rule does not say you should Notes
tell your client to consult another 1
Rule 1.6(c), Minnesota Rules of Professional
lawyer; it expressly requires that the Conduct (MRPC) (“A contingent fee
client be represented by someone else in agreement shall be in a writing signed
order to make a prospective agreement by the client….”); Rule 1.5(b)(1), MRPC
of this kind.) (“If agreed to in advance in a written fee James C. Erickson, Sr.
You should also take care if you plan agreement signed by the client, a flat fee
to insert an arbitration provision in your shall be considered to be the lawyer’s 30+ YEARS OF EXPERTISE
fee agreement. In 2002, the ABA opined property upon payment of the fee, subject
that it is permissible to require a client to refund as described in Rule 1.5(b)(3).”); Fire & Property Damage
to arbitrate fee disputes or malpractice Rule 1.5(b)(2), MRPC (“Such an availability Policy Appraisals
claims, but to be ethical, such a provision fee shall be reasonable in amount and Personal Injury/Death
should apprise the client of the advan- communicated in a writing signed by the
Mediations/Arbitrations
tages and disadvantages of arbitration client.”).
Minnesota/Wisconsin
to ensure informed consent.12 Whether 2
Rule 1.5(b), MRPC.
an arbitration provision that does not do 3
Rule 1.0(o), MRPC.
so is rendered unenforceable or pre- 4
Rule 1.5(a), MRPC; see also ABA Formal Erickson, Bell, Beckman & Quinn
empted by the Federal Arbitration Act, Opinion 93-379 providing guidance on 1700 Highway 36 West, Suite 110
if applicable, is a subject for another day, ethically reasonable fees and expenses. Roseville, MN 55113
but I do recommend that you familiarize 5
Rule 1.5(b)(3), MRPC. 651-223-4999 | jerickson@ebbqlaw.com
www.ebbqlaw.com
yourself with the law and ethics opinions 6
Rule 1.15(c)(5), MRPC (“except as specified
in this area if you wish to include an en- in Rule 1.5(b)(1) and (2), deposit all fees
forceable and ethical arbitration clause received in advance of the legal services
TRADEMARK
in your fee agreement. being performed into a trust account and
Also take care in attempting to obtain withdraw the fees as earned”); Rule 1.15(b),
security for payment of fees in your fee MRPC (requiring withdrawal of earned fees
agreement (or otherwise). The conflict within a reasonable time of being earned Copyright & Patent Searches
rules have specific requirements for as well as written notice of the withdrawal “Experienced Washington office
the manner in which you can acquire a from trust).
for attorneys worldwide”
security interest adverse to your client.13 7
Rule 1.5(b)(1), MRPC.
You should follow those rules to avoid an 8
Rule 1.5(b)(2), MRPC.
unethical business transaction with your 9
Rule 1.5(c), MRPC. FEDERAL SERVICES & RESEARCH:
Attorney directed projects at all Federal agencies
client. Nor can you acquire a proprietary 10
Rule 1.16(f), MRPC. in Washington, DC, including: USDA, TTB, EPA,
interest in the cause of action or subject 11
Rule 1.8(h), MRPC. Customs, FDA, INS, |FCC, ICC, SEC, USPTO,
matter of the litigation, except for an 12
ABA Formal Opinion 02-425 (2/20/2002) and many others. Face-to-face meetings with Gov’t
officials, Freedom of Information Act requests,
attorney’s lien authorized by the law or a (“It is permissible under the Model Rules
copyright deposits, document legalization @ State
reasonable contingent fee.14 to include in a retainer agreement with a Dept. & Embassies, complete trademark, copyright,
Finally, double-check if you plan to client a provision that requires the binding patent and TTAB files.
charge interest on your accounts receiv- arbitration of disputes concerning fees and
COMPREHENSIVE: U.S. Federal,
able. You must comply with state usury malpractice claims, provided that the client
State, Common Law and Design searches,
and lending laws regarding the interest has been fully apprised of the advantages INTERNATIONAL SEARCHING
you charge, because an illegal fee is an and disadvantages of arbitration and has EXPERTS: Our professionals average
unreasonable fee.15 given her informed consent to the inclusion over 25 years experience each
FAST: Normal 2-day turnaround
of the arbitration provision in the retainer with 24-hour and 4-hour service available
Conclusion agreement.”)
Fee agreements are central to the at- 13
Rule 1.8(a), MRPC; see also Rule 1.8(a),
torney-client relationship. Done well, they Cmt. [4] (“a fee paid in property instead of
provide great clarity to clients and counsel money may be subject to the requirements
alike. The ethics rules include a lot of of Rule 1.8(a) because such fees often
information on how you may, or in some have the essential qualities of a business 200 N. Glebe Rd., Suite 321, Arlington, VA 22203
cases must, structure your fee agreement. transaction with a client.”) Ph: 703-524-8200, Fax: 703-525-8451
Do not be so focused on contract law that 14
Rule 1.8(i), MRPC. Minutes from USPTO & Washington, DC
you forget the ethical rules that also apply. 15
See Patrick R. Burns, Interest on Legal Fees: TOLL FREE:1-800-642-6564
Happy 2020, and as always, please call our Usury is Illegal, Unreasonable, and Just Plain www.GovernmentLiaison.com
advisory opinion service at 651-296-3952 Bad, Minn. Lawyer, 8/27/2001, available at info@GovernmentLiaison.com
if you need ethics advice. s http://lprb.mncourts.gov/articles/Articles.
www.mnbar.org January 2020 s Bench&Bar of Minnesota 7
Law&Technology | BY MARK LANTERMAN
Beyond compliance:
Effective security training
T
he importance of education and
training in striving for the best
possible cybersecurity out-
comes can’t be overestimated.
Within organizations, management looks
to these initiatives as a way to inform
employees about an ever-evolving cyber-
threat landscape replete with risks and
the potential for losses. Regularly sched-
uled training also provides a method for
documenting employee compliance and
a “checked box” for security efforts.
But staying compliant with regula-
tions, laws, and internal policies is not
a guarantee of perfect security. I often
think that we’d all like to believe that
completing that 15-minute module
three weeks ago on how to spot an email
scam (the one that really only took five
minutes to finish) is enough to ensure Compliance with Payment Card new technologies—as well as an orga-
our organization’s security. Everyone who Industry (PCI) standards would have nization’s incorporation of the Internet
was assigned the training has completed had upper management feeling pretty of Things—should always be provided
it—that’s enough, right? This false good about their security. While the Pay- across departments.
sense of security frequently weakens ment Card Industry Security Standards Attorneys are held to an especially
the culture of security that training and Council has set forth these standards high standard when it comes to the
education are supposed to support. as a minimum baseline by which an information they protect. According
In 2013, Target fell victim to a massive organization should abide, I think it’s to the American Bar Association’s
breach that left millions of customers’ fair to say that a large majority of PCI- Formal Opinion 477R, “a lawyer may
data vulnerable to hackers. The attack compliant organizations take a passing be required to take special security
continues to cost Target even now, as the audit as an A+ for security, “set it and precautions to protect against the
organization has decided to pursue legal forget it” until the next audit, and pat inadvertent or unauthorized disclosure
action against its themselves on the back when they pass of client information when required by
insurer for $74 again. The fact is, Target’s compliance an agreement with the client or by law,
million, alleging meant little in providing an overall view or when the nature of the information
that it was not re- of its security posture; PCI compliance requires a higher degree of security.”3
imbursed for issu- could not predict that when technical The reasonable efforts required by
ing new payment controls alerted Target to an intrusion, the legal community to prevent data
cards to custom- they would be ignored. breaches necessitate thorough education
ers.1 Substantial Compliance with technical control that takes the firm’s specific needs, and
reputational and standards can never override the human types of data, into account. Compliance
MARK LANTERMAN financial damages element of security. In Target’s case, with policy is only worthwhile when
is CTO of Computer ensued as a result compliance with PCI standards did not upheld by a culture of security that
Forensic Services. of the breach, and have any impact on day-to-day security acknowledges the unpredictability of a
A former member clearly, Target is practices. Organizations can support changing threat landscape. s
of the U.S. Secret not completely out security, budget appropriately, pursue
Service Electronic of the woods. The compliance, assure customers and clients
Crimes Taskforce, scary thing? As a of their attention to latest requirements Notes
Mark has 28 years recent journal ar- and best practices—and still be insecure. 1
http://www.startribune.com/target-sues-
of security/forensic ticle pointed out, Accounting for the human element insurer-for-at-least-74-million-in-2013-data-
experience and “In 2013, Target requires interactive, regular training breach-costs/565169292/
has testified in over was certified PCI that considers each employee’s unique 2
https://www.csiac.org/journal-article/compliant-
2,000 matters. He is DSS compliant role in contributing to an organization’s but-not-secure-why-pci-certified-companies-are-
a member of the MN weeks before security culture. While every employee being-breached/
Lawyers Professional hackers installed is responsible for security, different roles 3
https://www.americanbar.org/content/dam/aba/
Responsibility Board. malware on the re- and responsibilities require personalized administrative/professional_responsibility/aba_
tailer’s network.”2 education. Additionally, training for formal_opinion_477.authcheckdam.pdf
8 Bench&Bar of Minnesota s January 2020 www.mnbar.orgTo help our members
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THE cloud-based, ecommerce marketplace for automated legal document creationColleagueCorner | MEET SARAH SOUCIE EYBERG
‘There is incredible value
in membership’
What I like about Social Security
disability is that I am helping people
with really serious physical or
mental health problems navigate
a complex system. My clients are
often unsophisticated, or otherwise
SARAH SOUCIE EYBERG
vulnerable, most often because of the
is a 2011 graduate of impact of their health conditions on
William Mitchell College their functioning.
of Law. The winner
of the MSBA New You’ve done an extraordinary
Lawyers Section 2018-19 amount of volunteer work for the bar,
Outstanding New Lawyer including service as chair of the
of the Year Award, MSBA General Policy Committee
Sarah practices Social and as a member of the MSBA
Security disability law Assembly and MSBA Council.
as a solo practitioner. What led you to get so involved?
As a member of the
I have been an MSBA member
MSBA since she was a
law student, Sarah has
since law school. To me, it is a no-
held leadership roles
brainer. There is incredible value in
in numerous sections, membership. I care passionately about
including New Lawyers, the organization and its mission, and
Practice Management I have a hard time not volunteering
and Marketing, and when there is work to be done.
Social Security Disability
Law. She served as What have you gained professionally
chair of the New from your bar volunteer service?
Lawyers Early Bar Exam I think the number one value that
Committee, and saw I get from bar volunteer service is the
that special project sense of giving back to the greater
through approval by the
good, or having an impact on the legal
NLS Council and the
Why did you go to law school? MSBA Assembly and a
profession greater than the service I can
When I was growing up, I had the great fortune to petition to the Minnesota
provide to my clients. A lot of the work
watch my father practice law. And from a very young age Supreme Court. She now we do at the bar has a direct impact on
I wanted to be a lawyer. I also wanted to be a rock star serves on the Board of practitioners’ practices, well-being, and
and a ballerina and a cowgirl. But I stuck with being a Law Examiners Early success. I love being a part of that.
lawyer. Definitely not because I wasn’t extremely talented Bar Exam Committee,
in all those other areas. representing the What do you like to do when
MSBA. Sarah is also you’re not working?
How did you come to focus your practice on Social the chair of the MSBA When I am not working, I am likely
Security disability work? Assembly General shuffling between MSBA meetings,
I came up on Social Security disability work because Policy Committee and Girl Scouts, Boy Scouts, and wrestling/
that was the type of law practiced in the first law firm was recently re-elected gymnastics/softball practices. We also
to another term on the
that hired me. I had no prior experience in Social love spending time at the cabin as a
MSBA Council. She lives
Security disability, nor did I ever take any administrative in Coon Rapids with
family. I like to run, and knit, though
law classes in law school. When I was in law school I her husband and four
usually not at the same time. And
thought I might be a legal aid attorney and help people wonderful children. occasionally I get to spend time with
with their family law issues. After doing some work like SOUCIEEYBERGLAW
my handsome (and equally busy)
that, I realized quickly that was not the place for me. @GMAIL.COM husband. s
10 Bench&Bar of Minnesota s January 2020 www.mnbar.orgBLENDED LEARNING
AT MITCHELL HAMLINE SCHOOL OF LAW
Mitchell Hamline
STUDENT LOCATIONS
blended-learning
students and alumni
since 2015 ALUM LOCATIONS
515 153 93.6%
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students have students have for blended-learning
enrolled since 2015 graduated graduates in the
class of 2018
In 2015, Mitchell Hamline became the first ABA-approved
law school in the nation to offer a law degree through a
blend of online and on-campus instruction.
Learn more about the evolution of blended learning
at Mitchell Hamline at mitchellhamline.edu/bbdec. MITCHELLHAMLINE.EDU ST. PAUL, MINN.Buyers’ Guide 2020
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www.mnbar.org Buyers’ Guide January 2020 s Bench&Bar of Minnesota 15THE TROUBLE WITH
EYEWITNESS TESTIMONY
TOWARD A MODEL JURY INSTRUCTION ON WITNESS ACCOUNTS
By Julie Jonas, Jevon Bindman, and David Herr
O
ne of the most gripping mo- These recommendations are essential not included in Minnesota’s jury instruc-
ments in any trial occurs when to the justice system’s efforts to ensure tion that may be helpful in weighing the
an eyewitness identifies the that the correct person is held responsible credibility of a testifying eyewitness, and
defendant as the perpetrator for the wrong committed. But the justice offers a sample jury instruction that ad-
of a crime in open court. But what the system has been slow to incorporate these dresses those factors.
jury doesn’t know is this is primarily for recommendations, and jurors are often
show; the “real” identification occurred uninformed about critical factors that af- Brathwaite: The unintended
months earlier in a police lineup, photo fect the reliability of eyewitness identifi- jury instruction
array, or other identification procedure. cation. It is important to understand that Like most states, Minnesota follows
Dozens of factors affect what the eyewit- these issues do not arise only on “one the constitutional standard for admission
ness observed, the witness’s ability later side of the v” in criminal cases—nor, for of eyewitness testimony set by the U.S.
to recall that information to make the that matter, only in criminal cases. Any Supreme Court in Manson v. Brathwaite.1
identification, and the witness’s confi- party proffering or challenging eyewitness Under that standard, if an identification
dence in the identification. And even the (or “earwitness”) testimony may need to procedure is unnecessarily suggestive, the
best-intentioned law enforcement officer have the testimony put in proper per- evidence should be excluded unless the
or investigator can unintentionally bring spective so that the factfinder can assess prosecutor can show through the total-
bias to the procedure. it fairly. ity of the circumstances that the iden-
Recent scientific advances have led One solution, consistent with how tification is still reliable. In determining
to a greater understanding of how the we handle other matters of guidance to whether the evidence is admissible, a
circumstances under which witnesses juries, is a more detailed jury instruction court may consider the opportunity of the
observe something affect their ability to that provides useful information regard- witness to view the perpetrator, the wit-
recall that information later. Events that ing the science behind identification and ness’s degree of attention, the accuracy
occur between the initial observation recall. A well-crafted jury instruction of the witness’s description, the witness’s
and the identification can also affect a is a cost-effective way to educate jurors degree of certainty, and the time elapsed
witness’s memory. As a result, research- about best practices for obtaining a cred- between the crime and the identification.
ers have advanced numerous recom- ible identification, particularly since the In the decades since 1977, the Supreme
mendations to educate all stakeholders pertinent research is so broadly accepted. Court has provided little additional guid-
on methods to ensure greater certainty This article describes the current jury ance regarding factors that make a lineup
in eyewitness identifications and greater instruction used in Minnesota, its origins, unnecessarily suggestive.
understanding of their sometimes-coun- and recent attempts by Minnesota courts Brathwaite provides a standard for
terintuitive limitations. to address this issue. It identifies factors judges to exclude unreliable eyewitness
16 Bench&Bar of Minnesota s January 2020 www.mnbar.orgYou can also read
