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A lot of attorneys don't know this but there really is a government sponsored debt consolidation plan. Under Title 11 of the US Code you can find Chapter 13 Bankruptcy. Chapter 13 Bankruptcy is a government sponsored debt consolidation plan. Now, if they really called Chapter 13 Bankruptcy a "government sponsored debt consolidation plan" no Minnesotan would ever choose to do anything but a Chapter 13 Bankruptcy . You see, traditional debt consolidation plans have short comings that a Chapter 13 Bankruptcy doesn't have. First, in most traditional debt consolidation plans, you have to pay all your creditors in full. Second, whatever debt does not get paid off ...
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[This blog originally appeared as an article in the July 2020 Bench & Bar of Minnesota.  Added near the end of the article is a paragraph describing a Minnesota Supreme Court discipline case decided July 1, 2020.] Who in your law firm is responsible for adopting and updating policies and procedures on legal ethics matters? Who is responsible for training lawyers and staff on these matters? Must your firm audit its own files and procedures to reasonably ensure compliance with the ethics rules? What are the areas of law firm operation that are important for ethics scrutiny? Lawyers who manage law firms and law offices should be asking these questions. ...
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On June 3, 2020, the ancient doctrine of champerty was abolished in Minnesota. [i]   Champerty’s life span was 123 years in Minnesota, but champerty’s lineage extended to medieval England, and even to ancient Rome and Greece. [ii]   Although Minnesota applied the law of champerty in four cases between 1897 and 1932, for many decades the doctrine lay dormant, except for one Court of Appeals case. [iii]   Faint vestiges of champerty, and its common law cousins maintenance and barratry, survive in the Rules of Professional Conduct. Champerty is, “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to ...
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Sometimes a client, having retained attorney A on a contingent fee agreement, discharges A and retains B, from another law firm, on a contingent fee agreement.  Attorney A will normally claim entitlement to a portion of any recovery made by the client.  ABA Formal Opinion 487 (2019), titled, “Payment to Prior Counsel of Portion of Contingent Fee,” addresses successor counsel’s ethics duties.  Op. 487 explains that Rule 1.5(e) does not apply, because that rule governs fee-sharing between lawyers who work together on a matter, not fees of successive counsel.  Op. 487 notes that if successor counsel’s fees are disputed, Rule 1.15 may require the disputed portion ...
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A familiar legal ethics maxim is, “We all make mistakes.  What matters is what we do next.”  All too many attorneys have turned manageable problems into catastrophes by refusing to recognize errors or trying to cover them up.  Other attorneys have corrected the errors, but failed to correct a system’s deficiency that helped cause the error. The Office of Lawyers Professional Responsibility has provided a model for recognizing and correcting errors.  On January 24, 2020, OLPR filed a motion asking the Minnesota Supreme Court to correct a disciplinary order by deleting findings that a lawyer had violated Rules 3.7(a) (the advocate-witness rule) and 4.3(d) (no ...
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New ABA Formal Opinion 19-489 is titled, “Obligations Related to Notice When Lawyers Change Firms.”  Op. 489 discusses obligations, of both law firms and departing lawyers, to treat each other fairly, and to put client interests first.  The opinion also discusses the departing lawyer’s obligations to give departure notices to clients and the firm.  Op. 489 is part of the ABA’s ongoing effort to make law firm departures more orderly.  Op. 489 has two problems.  It is sometimes more bully pulpit than clear interpretation of the Rules of Professional Conduct.  And it is not always clear about the interaction of ethics rules with the laws of fiduciary duty, partnership, ...
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A lawyer's ethical obligations upon withdrawal from one firm to join another derive from the concepts that clients’ interests must be protected and that each client has the right to choose the departing lawyer or the firm, or another lawyer to represent him. The departing lawyer and the responsible members of her firm who remain must take reasonable measures to assure that the withdrawal is accomplished without material adverse effect on the interests of clients with active matters upon which the lawyer currently is working. The departing lawyer and responsible members of the law firm who remain have an ethical obligation to assure that prompt notice is given ...
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The Minnesota Lawyers Board is soliciting comments on its proposal to amend Board Opinion 21, on a lawyer’s duties to consult with a client regarding the lawyer’s material errors in representation.  Comments are due by August 16 and the Board will vote on the proposal on September 27.  An article by the Director gives the rationale for amendment. [i]   The proposal raises several important questions – but first, some background to frame the questions. The Board issued Opinion 21 in 2009.  Op. 21 explained lawyers’ duties of consultation under Rule 1.4 (reasonable communication) and Rule 1.7(a)(2) (conflicts of interest arising from materially limited representations) ...
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BANKRUPTCY BULLETIN Contributing Editor: Lauren O'Neil Funseth , Lathrop GPM LLP In In re Benitez, 611 B.R. 106 (B.A.P. 8th Cir. 2020) , the United States Bankruptcy Appellate Panel for the Eighth Circuit (“B.A.P”) dismissed a debtor’s chapter 13 case as void, determining that it violated the automatic stay in the debtor’s pending chapter 7 case. In 2017, the debtor filed a voluntary petition under chapter 7. A secured creditor moved for relief from the automatic stay with respect to certain real property in which the debtor held an interest. The bankruptcy court granted the motion and subsequently denied a later request made by the debtor for reconsideration ...
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BANKRUPTCY BULLETIN Contributing Editor: Kenneth M. McGurran , Winthrop & Weinstine In  Briggs v. Rendlen ( In re Reed ), 943 F.3d 849 (8th Cir. 2019) , the Eighth Circuit held as valid a local bankruptcy rule in Missouri requiring a separate notice of appeal and a separate filing fee for each order being appealed, but also held that noncompliance should not have resulted in automatic dismissal. An attorney was sanctioned and banned from practicing before the bankruptcy court for six months. A few years later, the attorney filed two motions relating to this ban, both of which were denied. The attorney timely filed a single notice of appeal to the ...
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BANKRUPTCY BULLETIN Contributing Editors: Kesha Tanabe, Tanabe Law & Alexander M. Landreville, University of St. Thomas Law Lerbakken v. Sieloff & Assocs., P.A. , 949 F.3d 432 (8th Cir. 2020) Prior to the petition date, a Minnesota state court awarded the debtor a marital interest in his ex-wife’s 401(k) and IRA, but the debtor never filed a Qualified Domestic Relations Order, the ex-wife’s accounts were not renamed, and no funds were transferred from the ex-wife’s accounts into an account under the debtor’s own name.  Several months later, the debtor filed a Chapter 7 bankruptcy petition and claimed an exemption for his interest in both the ...
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Greetings colleagues. The MSBA's Civil Litigation Section has summarized the Court's emergency scheduling orders. A copy of their pdf is available in the MSBA practicelaw library. The full text is reproduced below.  EMERGENCY CIVIL SCHEDULING ORDERS The Minnesota Supreme Court has issued several orders concerning ongoing court operations given Governor Walz’ March 13, 2020 declaration of a peacetime emergency. Individual state court districts also have issued orders concerning their ongoing court operations. Civil practitioners may have questions concerning the impact of these orders, and which matters will and will not proceed. The following is a summary ...
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    If you have a court case scheduled in the next few weeks, you are probably wondering how the coronavirus pandemic is going to affect your hearing.  The short answer is that it depends on whether you have a hearing in state court or federal court. Here is what we know so far: The Minnesota Supreme Court issued an order about court operations during the coronavirus pandemic. You can read the order for yourselves, but it basically says that trials already in progress where a jury is already empaneled will continue until conclusion.  However, no new jury trials – for ...
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  Many attorneys and law firms are wondering how they can best serve their clients during the COVID 19 pandemic .  The answer, I think, lies in not having to be in a particular place in order to work, and making full use of Internet and cloud-based resources.  I take comfort in the fact that I know I can work from anywhere. For example, last year, my family and I were on vacation in London, but I was still able to respond to client communications, even when I was across the ocean, and on another continent. Every piece of paper that comes into my office gets scanned ...
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Good morning. Five days ago hardly anyone imagined that Minnesota would be in full coronavirus reaction mode by the end of the week. Yet this morning in Minneapolis, where the bar association offices are located, the freeway and skyway traffic was barely half that of a normal Friday, and the only sure thing at this point is that by Monday, it will be lighter still. As law firms and other organizations scramble to accommodate the demands of public health while managing to keep the lights on, we’re offering up this special edition of Legal News Digest to help you in the process. ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Taft Stettinius & Hollister LLP Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Contributing Editor: Karl Johnson, Taft Stettinius & Hollister LLP SCOTUS_Archdiocese_of_PR_v_Acevedo_Feliciano_18-921_2cp3.pdf In Roman Catholic Archdiocese of San Juan, Puerto Rico v. Yali Acevedo Feliciano , 589 U.S. __ (Feb. 24, 2020), the Supreme Court held, among other things, that an order remanding an action from federal court to the Puerto Rico Court of First Instance nunc pro tunc (“now for then,” or effective as of a prior date) did not restore jurisdiction to the non-federal ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Taft Stettinius & Hollister LLP Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Contributing Editor: Jackie Williams, Manty & Associates, P.A. Eighth_Circuit___Rucker_v__Belew.pdf   In Rucker v. Belew (In re Belew) , 943 F.3d 395 (8th Cir. 2019), the Court of Appeals for the Eighth Circuit considered whether the bankruptcy court had the authority to deny an exemption on grounds not specified in the bankruptcy code. After conducting an investigation, the chapter 7 trustee discovered that the debtor placed $30,000 in cash in a home safe prior to filing. The cash was not ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Taft Stettinius & Hollister LLP Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Contributing Editor: Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Small_Business_Reorganization_Act_of_2019_PLAW-116publ54.pdf 2019_sbra_interim_rules_amendments_redline_0.pdf On February 19, 2020, the Small Business Reorganization Act and related interim Bankruptcy Rules go into effect. Congress passed the SBRA with the intent of making Chapter 11 reorganization available to small businesses who were previously priced out of the option. The bulk of the SBRA is codified into a new ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Taft Stettinius & Hollister LLP Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Contributing Editors: Karl Johnson, Taft Stettinius & Hollister LLP Scotus_Ritzen_Group_v_Jackson_Masonry_18-938_l6gn.pdf In Ritzen Group, Inc. v. Jackson Masonry, LLC , 589 U.S. ___ (Jan. 14, 2020), the Supreme Court agreed with the majority of circuit courts and unanimously held that an order unreservedly adjudicating relief from the automatic stay of 11 U.S.C. § 362(a) is final and any appeal must be filed within the 14 day period under Rule 8002.The Court expressly declined to address the ...
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BANKRUPTCY BULLETIN Editors-in-Chief Karl Johnson, Briggs and Morgan, P.A. Alexander J. Beeby, Larkin, Hoffman, Daly, & Lindgren Ltd. Contributing Editors: Kesha Tanabe, Tanabe Law & Austin Majeskie, University of St. Thomas Law 17-30673_Gander_Mountain_Key_Executives__1_.pdf In In re Gander Mountain Company , 605 B.R. 875 (Bankr. D. Minn. 2019) the bankruptcy court sustained the trustee’s objection to claims filed by certain high-level employees (the “Key Executives”). The claims were disallowed because the plain language of the Key Employee Retention Plan (the “KERP”) and the Key Employee Incentive Plan (the “KEIP,” and together ...
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