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Small Towns Have Jobs for Young Lawyers is a post from: Lawyerist

The Minnesota Supreme Court appears ready to open the bar admissions door just a little wider – at least enough for some graduates of unaccredited law schools, modifying the recommendations of a year-long study and report (9 MB) by the Minnesota Board of Law Examiners (MBLE).

Under the present rules, there are essentially two ways to get admitted to the bar in Minnesota: by taking and passing the bar exam or by practicing law in another jurisdiction for five of the past seven years (different rules may apply to in-house counsel). But these routes to admission are only open to graduates of ABA-accredited law schools. If you went to one of a handful of unaccredited law schools in the United States (mostly in California) or graduated from a law school in a foreign country, you cannot be admitted to the Minnesota bar unless you go to law school again at an ABA-accredited school. In fact, I know several foreign lawyers who had to do just that. Minnesota is in the minority of jurisdictions that adhere to this strict rule.

In April 2009, several Minnesota residents who had been licensed to practice law in other jurisdictions filed a petition with the Minnesota Supreme Court to amend the bar admission rules to allow them to sit for the Minnesota bar exam despite having not graduated from an ABA-approved law school. The Court, in turn, asked the MBLE to study the issue and report back to the court.

MBLE’s lengthy and quite thorough report analyzes the difficult issues surrounding how a state should determine whether individuals are competent to practice law. The ABA’s accreditation arm sets and enforces rigorous standards for law schools, such as the types of courses offered, the size of classes, availability of clinical courses, well-stocked libraries, etc. Of course, there is no empirical evidence that links each of those standards to success in practice.

Similarly, we rely on the bar exam as a measure of prospective lawyers’ competence to practice but there are no studies that reveal whether lawyers who failed the bar exam one or more times before passing are any less successful than lawyers who passed the first time. And we do not have any way of knowing whether lawyers who failed the exam and gave up might still have been successful lawyers.

The MBLE evaluated these hard questions and recommended no change in the rules regarding who is eligible to sit for the bar exam. MBLE did suggest, however, that the Court should consider admitting attorneys from other jurisdictions based on a “substantial” number of years of practice, without regard to the accreditation status of their law school. Call it the “uber waive-in rule?”

The Minnesota Supreme Court, however, appears poised to take a hybrid approach. In an order the Court issued August 13, 2010, the Court asked the MBLE to draft and file a proposed rule amendment that would “permit a licensed attorney who has successfully practiced law in another United States jurisdiction for a specified number of years to sit for the Minnesotabar examination and, if successful and otherwise qualified, be admitted to the practice of law in Minnesota notwithstanding the fact that the attorney had not graduated from an ABA approved law school.” This is very close to the suggestion submitted to MBLE by the MSBA Rules of Professional Conduct committee.

The proposed rule amendment must be filed by September 30, 2010, and will be followed by a notice and comment period. I wonder whether the ABA accreditation committee will share its thoughts.

A recent decision of the Eighth Circuit and a pending prosecution by the Minnesota Board on Judicial Standards (BJS) encourage judges to speak more in some instances and less in others.

The Eighth Circuit case, Wersal v. Sexton (courtesy of Minnesota Lawyer’s blog), struck down several restrictions on candidates for judicial office, as set forth in Canon 4 of the Code of Judicial Conduct. The court rejected clauses that prevented judicial candidates from endorsing or opposing other candidates for public office and directly soliciting campaign contributions from non-lawyers, whether for the judicial candidate’s own campaign or some other candidate’s campaign.The clear theme of the opinion is that few, if any, restrictions on the political speech of judicial candidates will ever pass constitutional muster.

So Minnesota judicial candidates are now free to speak more. In combination with previous United States Supreme Court and Eighth Circuit decisions, Minnesota judicial candidates are free to announce their positions on issues, align themselves with political parties and candidates running for local or national offices, and solicit campaign contributions. Could make things interesting in Minnesota’s 10th judicial district, where 24 candidates are vying for one seat.

On the other hand, the Board of Judicial Standards has filed a formal complaint with the Minnesota Supreme Court seeking to publicly discipline Hennepin County Judge Stephen Aldrich for, well, speaking too much. Or perhaps it is better characterized as being too glib in his courtroom. Judge Aldrich referred generally to some witnesses (not when they or a jury was present) as ”a bunch of drunkards,” made some other comments about intoxicated people, chided counsel on a couple of occasions, and made an insensitive joke about how he and his wife, during 45 years of marriage, had never considered divorce but maybe considered murder.

Judge Aldrich’s response is available as well, although the version the BJS posted on its website (and linked to here), does not include the exhibits Judge Aldrich attached. The exhibits, which were filed with the Minnesota Supreme Court, consist of an order by Hennepin Chief Judge Swenson refusing to remove Judge Aldrich from one of the matters identified in the complaint, a letter from a witness to one  another matters, and a half-dozen or so letters of support from other judges and lawyers.

Juxtaposed against each other, the two cases make for some  interesting contrasts. Judge Aldrich is being chastised for engaging in speech that violates rules preventing judges from creating the appearance of impropriety or impugning the judiciary. In the Sexton case, the Court rejected arguments that restrictions on judicial candidates’ speech was necessary to avoid even the appearance of impartiality (as described in Judge Bye’s dissent).It’s okay for a judicial candidate to speak out during a campaign in favor of tougher DWI prevention but not for a judge to refer to allegedly intoxicated people as “drunkards.”

So, judges — feel free to talk more but watch what you say.

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The More Things Change, the More Hourly Billing Will Stay the Same is a post from: Lawyerist

Each year in early July the Minnesota Office of Lawyers Professional Responsibility (OLPR) and the Minnesota Lawyers Professional Responsibility Board (LPRB) publish an annual report summarizing the Year in Discipline, as it were. Not the type of reading typically picked up by anyone other than ethics wonks and insomniacs, but here are some of the highlights:

• Complaints and inventory growing. The number of new complaints was up during the first five months of this year; if it holds it would reach an annual pace of 1,400 complaints, about a 10% to 15% increase over the past few years but about the same as the Office had in the mid-90s. More troubling is that the number of open files was up to 638, possibly its highest in two decades. The target is only 500, which the Office hasn’t seen for about seven years. The number of files open longer than a year is holding at around 140, above the goal of 100. The Office should be able to handle the increase given that it has added a full-time attorney position and a full-time paralegal position in the past year. Clearly they are feeling the pressure to get the caseload down: the annual report announced a three-month “moratorium” on staff presentations of CLEs and writing articles for Minnesota Lawyer.

• Trusteeships growing. The Office seems to be swamped with trusteeships over the files of lawyers who have died with no one to wrap up their practices and the aftermath of the demise of Centro Legal, which left behind hundreds of client files. The Office has had to rent additional storage and office space; some of the drain on staff resources may account for the growing number of open files.

• Discipline levels stable. For all the increase in complaint volume, about the same number of attorneys received public discipline last year (38) as in prior years. Private discipline was also pretty constant, running at about 115 private admonitions and 35 private probations. Although the number of reported trust account overdrafts has dropped about 10% from historical levels, each year about a dozen lawyers have overdraft inquiries converted into disciplinary files, usually because of shortages resulting from poor bookkeeping or inattention, or because the financially-strapped lawyer, although perhaps not stealing any money, used the trust account in lieu of a separate checking account.

With the upgrade of my website to WordPress (by my webmaster, Karin Conroy of Conroy Consults), I get to venture into the blawgosphere first hand. I have been blogging on a semi-regular basis for the past two years on Lawyerist and plan to continue to post there. I am also on Twitter, which I have used for posting note-worthy ethics news and the occasional random thought.

Why then, would I need my own blawg? Quite frankly, I do not intend to make a career of writing blog posts or claw my way into the ABA’s top 100 blawgs. But there are some topics, such as commenting on Minnesota ethics cases or providing updates on the activities of the MSBA Rules of Professional Conduct committee and the Lawyers Professional Responsibility Board (LPRB) that do not quite fit the theme of Lawyerist (which has a national readership) and would be of interest to Minnesota readers. The heart of my practice is Minnesota lawyers; I intend to use this space to develop resources they may find useful.

I invite you to subscribe to the RSS feed, which is a convenient way of having future posts delivered to an RSS reader in your web browser or to your e-mail program. I pledge to write posts that are high on relevance to lawyers’ practices and low on self-indulgence. I plan to post when I have something to say, rather than chain myself to a schedule I will never keep up with. Of course, I welcome your comments, either publicly on this site or by private e-mail.

Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”

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Wash That Client Right Out of Your Hair is a post from: Lawyerist

At some point in our educational careers, we have all returned to school in September and been directed to write an essay titled “What I Did Last Summer.” And we have all had the same first thought: Nothing. I did nothing all summer.

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Planning For What You Did Last Summer is a post from: Lawyerist