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Unique Pro Bono Consortium Resolves I-35 Bridge Collapse Litigation

I was proud to read in the National Law Journal that my friend and law school classmate, Chris Messerly, led a unique consortium of 17 pro bono law firms to settle the lawsuits resulting from the August 2007 Interstate 35W bridge collapse over the Mississippi River in Minneapolis.

Chris is with Robins, Kaplan, Miller & Ciresi, the Minneapolis-based litigation firm that agreed to handle the case pro bono. Chris was president of the Minnesota Trial Lawyers Association at the time of the collapse, which led him to orchestrate the group of firms to handle the matter without compensation. 

According the interview with Chris in the National Law Journal, the unique group of firms worked well together for the benefit of the victims:

We had teams focused on various aspects, such as brief writing and experts, and we coordinated all that. [Robins Kaplan Minneapolis partner] Phil Sieff spent a great deal of time essentially managing this consortium. The regular meetings would usually be telephone conferences so everyone was up to speed, and we'd have periodic meetings where all of the clients would come to our firm and meet all together. There was a joint prosecution agreement amongst all plaintiffs' lawyers to protect confidentially. We would also make assignments to various lawyers. [For example], there were millions of documents to review. So we'd coordinate schedules, and lawyers would spend a day or two or three doing that over the months that we reviewed millions of documents. Over 130 people in our law firm contributed over 20,000 hours to the pro bono effort. That kind of tells you the effort it took to coordinate, oversee, manage and provide direction to the work done for all 103 of our clients. [Also], every consortium lawyer had the ability, with password-protected access, to access any and all documents [online]. Although not all [documents] were produced electronically we made them so. We would send out a notice weekly of all the additional things that had been placed in the repository. We also paid over $2 million in costs, [including] expert costs, travel and depositions. 

The representation not only included a court battle, but a risky and time-consuming strategy to get the state legislature to enact a 9/11 type fund. Although the firm may ultimately recoup the $2 million in costs, it was never the expectation of the firm. That's a commitment to the victims. It's also a snapshot of the way they do things in my home state of Minnesota. 

It also reflects the core values of the lead attorney who has always exemplified compassion and professionalism ever since we were in a first year law study group almost 25 years ago. 

Way to go Chris! 

Revisiting America at the Minnesota State Fair

Yesterday my youngest son Kendall and I visited the Minnesota State Fair, a 149 year tradition that has been at the same fairgrounds in a suburb of St. Paul (about 4 miles from where I grew up) for over 100 years. It was our first visit in 5 years.

The Minnesota State Fair is 320 acres of food, fun, exhibits and people watching. The fair attracts over 1.8 million visitors in the 12 days leading up to Labor Day. There is plenty to do and see--from the huge farm tractors showcased on Machinery Hill to the games and rides on the Midway; from jam, honey, quilt and Christmas tree decorating competitions to the booths hawking “Miracle Mops”; from the pig and cow barns full of prize-winning livestock to the nightly grandstand performances featuring (over the years) everyone from Christina Aguilera to ZZTop; from The Carpenters to KISS; from Tex Ritter to Carrie Underwood and hundreds more.

But we go for the food. Fabulous food. Not gourmet food, but state fair food. Comfort food—most of it cooked in deep dark boiling vats of vegetable oil. Food you shouldn’t eat the other 353 days of the year. Glorious food.


Foot-long hot dogs with grilled onions. Cheese curds, candy bars and Twinkies—all batter-dipped deep-fried. Fire roasted corn, caramel apple sundaes, bratwurst, wild game burgers, French fries, and Walleye cakes. Newcomers this year like chicken-fried bacon, fried pigs ears with lime chipotle glaze, deep-fried cheeseburger sliders, peach-glazed pork cheeks, Koren BBQ chicken tacos, and Corndog pizza.

And then there is all the foods served on sticks. Pickle on a stick, pork chop on a stick, alligator on a stick, and the ever-popular spaghetti & meatballs on a stick. There is teriyaki ostrich, cheesecake, fresh fruit, chicken-chipotle pizza, and yes, camel meat--ALL on a stick!

Oh, and then there’s the all-you-can-drink milk concession sponsored by the American Diary Association where over 20,000 gallons of milk are consumed each year by fair-goers.

We are headed back to the fair again tonight with family and friends for one more gastronomic adventure and a chance to show our kids how to win games on the Midway! Or at least we'll try! :-) I think I'll try the chicken-fried bacon on a stick, mong others. And, yes, I already worked out for 90 minutes today in anticipation of the calorie fest!

Kudos to the ABA for Representing Our Profession Against Unwarranted Regulation

Kudos to the ABA for standing up to the FTC who want to add another layer of regulation on lawyers. The  FTC wants to include lawyers in their "Red Flag" financial rule, but a D.C. Court ruled earlier this year that the FTC has no authority to regulate lawyers. So the FTC decided to appeal. Leading that charge is the ABA. According to the National Law Journal,

[t]he Federal Trade Commission has no authority to lump lawyers in with creditors in the enforcement of regulations that govern the prevention of identity theft, attorneys for the American Bar Association said in court papers filed in a federal appeals court in Washington.

The ABA brief, filed Friday in the U.S. Court of Appeals for the D.C. Circuit, responds to FTC papers that argue that lawyers should be held to comply with so-called "red flag" rules that require financial institutions and creditors to develop identity theft prevention programs.

The FTC maintains that lawyers act as creditors when they provide legal services without immediately taking payment. The ABA sued the FTC in August 2009 in federal district court in Washington, winning a favorable ruling. The FTC is challenging the ruling on appeal.

"Here, the Commission is attempting again to foist a regulatory scheme on lawyers without the slightest indication that Congress intended or desired such a result," the ABA's brief, signed by Proskauer Rose partner Mark Harris, said. Harris, based in New York, co-heads the firm's appellate group. Click here for the ABA brief.

The ABA brief said the FTC's position is "unsustainable" in the D.C. Circuit, which previously ruled, in an unrelated case, that the FTC cannot regulate the practice of law unless Congress provides the commission with an "unmistakably clear" grant of authority. (NLJ 8-24-10)

The outcome will effect all lawyers in the U.S. regardless of ABA membership. Thank you to the ABA and thank you to all dues-paying ABA members (of which I am one) for funding this litigation that will help all lawyers.

When Lawyer Advertising Seems Too Good to be True . . .

Radio and TV advertisements seem to be dominated by recession inspired debt reduction and tax reduction services that claim to save a person thousands of dollars or extract them from huge IRS liabilities for just pennies on the dollar. I've always wondered how that can be true. Well, maybe it's not!

The State of California has brought suit against "The Tax Lady" Roni Deutch, one of the best known advertising lawyers on television. In their complaint, the California Attorney General states the defendant(s)

"regularly violate California law while preying on consumers who cannot afford to pay their tax liability and are facing collection actions by the Internal Revenue Service (IRS). In order to convince consumers to pay Defendants thousands of dollars in fees, Defendants falsely promise them that they qualify for one of the IRS's programs to resolve taxpayers' back tax liability. In return for these fees, however, Defendants usually provide little or no assistance to their clients."

Ouch.

The complaint further states that the Deutch law firm employs 160 people--including a sales force of 45--and earns annual revenues of $25 million, and that bonuses are liberally employed to incentivize staff to generate high fees. Notably, $3 million a year was spent on radio and TV advertising.

Probably the most damning charge specifically uses one of her own commercials against her. In the commercial, three Deutch clients claim she saved them from having to pay the IRS thousands of dollars when in fact they were merely placed into an existing IRS program that permits them to temporarily not have to pay, but does not forgive the IRS debt.

I hope The Tax Lady has her day in court, but it sounds like she is going to need a good team of lawyers. I wonder if she will hire ones who advertise on television?

If You Wonder if Someone is Watching You, Click Here

The Wall Street Journal just finished running a fascinating and downright scary investigative series revealing how our privacy is compromised when we are surfing the Internet or using a cell phone, and how big players such as Microsoft have purposely failed to provide tools to protect our data in order to cash in on the on-line advertising bonanza.

The What They Know series began July 30 with The Web’s Gold Mine: Your Secrets, which Doc Searles (of Cluetrain Manifesto, et al) has pronounced as the tipping point in on-line advertising. That is, when people realize how much they are being tracked they will opt-out of providing data to surreptitious data miners who, in turn, will move on to greener (as in money) pastures on the Internet.

As part of this investigative series, the WSJ ran a series of tests including one that calculated the number of surreptitious tracking files that were installed when visiting the top 50 most visited sites on the web. The results are astonishing: "The 50 sites installed a total of 3,180 tracking files on a test computer used to conduct the study. Only one site, Wikipedia.org, installed none. Twelve sites, including Dictionary.com, Comcast Corp.'s Comcast.net and Microsoft Corp.'s MSN.com, installed more than 100 tracking tools apiece in the course of the Journal's test." Yes, Virginia, free stuff on the Internet carries a steep price.

This information is collected and sold on data auction sites, such as BlueKai, and used to provide on-line companies with more information about you as you visit their websites. For example, Capital One Financial Corp uses data it purchases to instantly decide what credit card offers when you visit their website. Websites are gaining the ability to decide whether or not you'd be a good customer, before you tell them a single thing about yourself.

This isn't all about money, but privacy and personal security too. In the August 3 installment in the series, the WSJ highlights how cellphone tracking can be used in domestic abuse cases to help the perpetrator locate their victim in a shelter. If you are a family lawyer, this is something you may want to advise ALL of your clients!

The WSJ also provides valuable links to the on-line advertisers, including Google, Microsoft, Yahoo, Lotame, and BlueKai, to allow consumers to change their preferences (i.e. voluntarily provide accurate data about yourself) or opt-out completely.

If you want to learn more about the privacy policies of the sites you visit--especially when using your firm's computers, try TrackerScan (by PrivacyChoice.org) via the WSJ site. To help stop this intrusion of privacy, visit the links above, and then get the TACO (Targeted Advertising Cookie Opt-Out) add-in for Firefox to prevent future privacy intrusions.

Besides the individual privacy aspects revealed in this WSJ series, it should give law firms pause to review and reflect upon their firm technology and Internet use policies with an eye to reduce the amount of information gleaned from employees while surfing for work and for pleasure.

Security Alert: Must All Lawyers Abandon Smart Phones?

A bit of a techno-firestorm started in late 2009 when my friends John Simek and Sharon Nelson alerted lawyers to the security flaws of the iPhone. They have warned the legal profession to be careful not to use the iPhone because if lost or stolen the phone can be quickly compromised and confidential data stolen with the right equipment.

While I respect John and Sharon immensely, I have disagreed with their analysis of our profession's Rules of Professional Conduct: I don't believe lawyers need to give up the iPhone as a business tool in order to avoid a potential breach of client confidentiality.

Now comes word via NetworkWorld and Wired of the ease by which to comprise an Android phone and steal cell phone signals.

As technology marches on, criminals will find ways to compromise it. Whether it is an iPhone, Android phone, or other phone, they are vulnerable to these criminals. It is up to lawyers to maintain reasonable security on their phones, but there is no need to trade in cell phones each time a headline points out a particular phone is vulnerable. Our ethical rules just don't require it.