cle for good: seventh annual full ethics and elimination ... · and elimination of bias training...

CLE For Good: Seventh Annual Full Ethics and Elimination of Bias Training (2017)

Original Broadcast: 5/23/2017

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CLE for Good Webinar Series: MinnesotaSeventh Annual Full Ethics and Elimination of Bias Training - Not Just for Public Interest Attorneys

5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 CLE credits of Elimination of Bias.

1st Seminar, 10:00am-11:00am: “The Tenants Project: Public Interest, Private Means” by Christopher Warnock of the Law Offices of Christopher Warnock and the Iowa Tenants’ Project (MN: 1.0 hour CLE Elimination of Bias credit)

• Tuesday, May 23rd, 2017• 10:00am – 3:20pm

We’ll be starting shortly…Tech troubles or other issues?Contact Deb @ 612-255-8862Or email: [email protected]

CLE for Good Webinar Series: IowaSeventh Annual Full Ethics and Elimination of Bias Seminar

5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 General CLE credits.

1st Seminar, 10:00am-11:00am: “The Tenants Project: Public Interest, Private Means” by Christopher Warnock of the Law Offices of Christopher Warnock and the Iowa Tenants’ Project (IA: 1.0 hour General CLE credit)



A Quick Intro to the Webinar• Schedule & relevant materials were emailed in advance.

Didn’t receive it? Materials available here:cleforgood.com/materials

• Q & A:

– Chat box at bottom, hit send & we’ll receive it

– We will try to answer questions during each presentation as appropriate, and will have time at the end for additional questions.

• Tech troubles or other issues?Call Deb @ 612-255-8862Or email: [email protected]



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Public Interest, Private Means:The Iowa Tenants’ Project

Christopher Warnock, Esq.

Iowa Tenants’ Project

Target Population Members

• Tenants are disproportionately lower income

• Tenants are disproportionately female

• Tenants are disproportionately racial minorities & foreign born

• Tenants usually passive, don’t stand up for themselves or don’t know how to work within court system. Lack of litigation and precedent in landlord tenant area leads to further overreach by landlords

• Landlords and tenants are at war with each other, outside purview of courts and other social controls

Experiment in Practical Social Reform

• Project designed to level the playing field, make courts work for both landlords and tenants, to eliminate or at least reduce problems just outlined

• Ultimate goal is to actually change how people in the landlord/tenant/legal field act, by changing how they think and feel.

• Litigation is one tool and not necessarily the primary or most effective one.



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Traditional Approaches

• Government & charity funded Legal Services• Underfunded

• Subject to political changes

• “Who pays the piper calls the tune” those providing funding determine how and what legal services are provided

• Retail approach, legal services handle individual cases, based on what comes through the door and follow client’s presentation of case

Cases benefit individual clients, but have little impact on system as whole

Traditional Approaches II

• Volunteer Attorneys• Ad hoc approach, number of attorneys and time available varies

• Handle individual cases only, rarely systemic approach

• Depends on volunteers who may handle only one or a few cases a year and thus lack expertise

Traditional Approaches III

• Government regulation & administration• Requires favorable political climate

• Requires taxpayer funding

• Increased government power at a time many resent increased government intrusion

• Regulations can be complex, cumbersome, impractical and ineffective

• Has advantages and disadvantages of punitive approach, not so effective at helping landlords and tenants to work together



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Alternative Approach – Tenants’ Project

• Not replacement for traditional approaches, supplement to cover areas these approaches miss

• Worked as closely as possible with Iowa Legal Aid and University of Iowa Student Legal Services, in particular kept lines of communication open

Self Funded

• Operated on a shoestring, as much as possible spend no money at all

• No staff, no discovery, in forma pauperis, no court costs. Only costs postage and copying, now eliminated with electronic filing.

• Focus Johnson County – literally can walk to court.

• No fund raising, no grants, no taxpayer support means independence, no control by government, donors, clients on board with overall strategy, not controlling representations by hiring attorney.

• Pro bono to start, but eventually paid significant attorney fees in settlement.

Practical - See Situation Clearly and Use Available Resources

• Choose actions and area of interest based on strongest chance of success – not initially interested in landlord tenant, but serious problem in Johnson County

• What is local, state, federal political situation? Local, state and federal governments taking hands off approach, tenants have local public support

• How powerful are players, stakeholders? Landlords have power through wealth, but not key industry, local landlords not politically savvy or powerful on local political scene

• Crucial for litigation: What is attitude of judges at local and appellate level? Very supportive at district court level, lukewarm at Supreme Ct



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Litigation Campaigns

• Combination of litigation, public

and media relations.

• Litigation excellent hook for news.

• News helps shape and focus

public opinion, puts pressure on

landlords.

Litigation Issues, Tactics and Strategy

• Focus on appellate litigation, tactics and strategy primarily focused on winning favorable appellate decision. Also must gain sympathy and support of trial court judges.

• Focus on law, not facts. Best posture for appeal. Clear violations of law, no statistics, no experts, no "Erin Brockovich" causation problems. Standard leases violate Iowa Landlord Tenant Act. No discovery, no depositions, no documents.

• Sympathetic plaintiffs, supportive of public interest litigation, carefully chosen factual situations.

Litigation Issues, Tactics and Strategy II

• Primary goal good precedent, not damages or attorney fees. Plaintiffs supportive of these goals.

• Shotgun approach, multiple cases, multiple forums, eg class actions in district court, small claims cases. Opposing attorneys try to win case, can't stop campaign until change leases, just keep filing more cases.

• Johnson County, home county only, home court advantage, walk to court.



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How Has Campaign Worked? Impact

• Useful appellate precedent, Staley v Barkalow in Iowa Court of Appeals, De Stefano v. Apts Downtown, Caruso v. Apts Downtown, Kline v Southgate, Gaffey v. Walton in Iowa Supreme Court

• Standardized pleadings, file petition, same time motion for partial summary judgment and class certification, initially rejected by district court judges, now granted as matter of course.

• Standard leases significantly changed in Johnson County and throughout Iowa

• Legitimacy with landlords, tenants and judges, increased prestige and ability to negotiate settlements - possibly most important!

Non Litigation Approach I Complaint Process

• Probably unique. Negotiated with landlords in settlement of class action, including largest landlord in Iowa City with over 2000 tenants, agreed to complaint process.

• Complaint process established by consent decree, provides that tenants can make complaint to landlord. Not satisfied within 10 business days, can come to Tenants Project. Tenants Project represents tenants, initially seeks informal settlement, can go to court. Tenants' Project representation of tenant is paid for by landlord!

• Tenants Project will only take complaints that are fair and equitable. Seek fair deal for both landlords and tenants. Landlords have gotten excited about process, find it useful, will refer tenants with problems to Tenants Project.

Non Litigation Approach II DIY Law School

• Do It Yourself Law School

• Seek to educate public so they can represent themselves. Deeper than just giving forms, give explanation of causes of action, structure of legal system, evidence, how to present case in court. True empowerment even if only small % likely to follow through.



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Summary of Results

• Appellate precedent gives new guidance in many untouched areas of landlord tenant law

• Johnson County landlords standardized leases in 2010 might have up to 50 violations of Iowa Landlord Tenant Act

• 2017 only few outliers in Johnson County have illegal leases

• Landlord police themselves due to perceived possibility of litigation

• Work directly with largest Iowa City landlord to mediate and settle any tenant disputes

• Gain trust of tenants and landlords, guide them to treat each other fairly



2nd Seminar, 11:05am-12:05pm: “Eliminating Legal System Bias Encountered by Disadvantaged Students, Four Examples” by William Dane of the University of Minnesota’s Student Legal Service office (MN: 1.0 hour CLE Elimination of Bias credit)





2nd Seminar, 11:05am-12:05pm: “Eliminating Legal System Bias Encountered by Disadvantaged Students, Four Examples” by William Dane of the University of Minnesota’s Student Legal Service office (IA: 1.0 General CLE credit)





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• Q & A:




Eliminating Legal System Bias Encountered by Disadvantaged Students:A discussion of four case studies

William Dane, Esq.University Student Legal Service

About USLSDepartment at University of MinnesotaProvides legal advice and representation to eligible students at the U.

▶ Landlord/Tenant▶ Criminal▶ Consumer▶ Expungement▶ Immigration

Main Service Areas



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University of Minnesota Twin Cities CampusStudent Profile (2016)

51,458 total number of students

6,470 (12.5%)international students

4,825 (9.4%)Asian students

Nationwide Student Profile2015-2016 Academic Year

1,043,839international students enrolled in U.S. colleges and universities

Nearly 1/3 of those students were from China

The U of MN ranked 13th nationally in number of Chinese students

Source: Project Atlas

Barriers for Asian Students

English language skills vary greatlyStudents in math and the sciences can study

effectively with limited English skills

Skilled interpreters can be hard to locate Not unusual for court interpreters to be less

skilled in English than the student



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Legal Language Complications

For individuals who speak English as a second language, legalese is a strange third language.

It takes time and patience for both the attorney and the international students to fully explain legal concepts.

Advantage:The students are usually quick to learn.

Case #1

Unintentional Bias Based Upon Ethnicity

ClientA Chinese student at the U of MN

ChargeMisdemeanor in Hennepin County

AllegationStudent had threatened harm to his landlord

Case assigned to an experienced criminal law attorney on the Student Legal Service staff

Case #1

The Process We Expected

Important Fact: I do not practice criminal law.

I expected to meet the client at Court where:1. We would enter a plea,2. Client would be release to me, and3. My colleague would handle it from there.



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Case #1

The Actual Process

My Clientwas ordered into custody with the highest bail of the day.

The Judgetold me that my client was accused of threatening to “shoot” his landlord.

FactMy client was terrified of American jail.

Case #1

What the Client Actually Meant to Say

Q: “What did you say to your landlord?”A: “I tell her I will shoo her.”Q: “What did you mean when you said that?”A: “That I will shoo her in court.”

Case #1

The Bias

No one in the system, not me, not my colleague, not the prosecutor, not the judge, thought to ask the young man with a distinct Chinese accent what he actually intended to say, until he spent several hours in jail and posted a large bond.

No one intended bias, but it was a huge factor.



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Case #1

How can we eliminate this type of bias in the future?

Discussion

Case #2

Intentional Bias Based Upon Race

Sometimes, the bias we encounter is intentional.

Racial discrimination is one obvious form of this bias.

Case #2

EvictionOur ClientAn African American student living just off campus in a small apartment building. He was 20 years old and a serious student.

AllegationHe came to our office after being served eviction papers. The allegation was that he had been playing loud music and disrupting other tenants.



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Case #2

Investigation and Research

We spoke with other tenants.We researched our files to learn about past cases

involving the landlord.We could not find anyone who had complained

about noise from our client’s unit. The landlord had no history of such complaints.

Case #2

Possible Racial Motive

We filed an Answer to the Eviction Complain.We cited the lack of evidence to support an

allegation of the breach of lease.We suspected a racial motive, but lacked proof.

Case #2

Settlement Discussion

At trial, the judge encouraged settlement discussions.

Two other tenants from the building appeared at trial to testify for our client. One tenant was a white male.One tenant was an African American male.

The landlord appeared at court with his wife.



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Case #2

Proof of Racial Motive

the landlord’s wife became agitated.During settlement discussions

She pointed at the African American witness and my client, and asked, “Why don’t these two guys move out of our building and find a new place together?”

I asked her, “Exactly what is about these two guys that make you think they would want to live together?

Case #2

The Dismissal

The landlord’s wife turned beat red.

The landlord agreed to immediately dismiss the case.

Case #2

How do we deal with intentional racial bias in litigation?

Discussion



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Case #3

Bias in the Law Based Upon Disability:The Huston Case

Bias most often arrives in administration of the law.

Less often, bias is found in the law itself.

Huston case involves bias in the law.

Case #3

The Client

30 year-old male, pre-med student Totally deaf since birthMajor speech impedimentsComputer wizard Laid-off computer systems administrator Significant work historyOverall good health

Case #3

The Problem

Huston applied for and was found eligible for unemployment compensation.

He received $1,500 in u.c. benefits. Then, he received notice from state declaring

him retroactively ineligible. The state wanted the money back.



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Case #3

The State’s Position

After exhausting his u.c. benefits, Huston applied for social security disability benefits.

Under Minnesota law, the very fact that Huston had applied for social security benefits made him retroactively ineligible for u.c. benefits.

Case #3

The StatuteMINN.STAT.SEC 268.085, subd. 4

Subd. 4 (b) allowed the state to offset against an applicant’s weekly u.c. benefit in the amount of “50 percent of the weekly equivalent of the primary Social Security old age or disability benefit the applicant has received, has filed for, or intends to file for, with respect to that week.”

At first glance, this appears to be a standard that can be fairly and equally applied to all.

Case #3

A Special Rule for the Disabled

Subdivision 4 (c): Regardless of paragraph (b), an applicant shall be ineligible for unemployment compensation benefits for any week with respect to which the applicant is receiving, has received, or has filed for primary social security disability benefits.



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Case #3

The Hearing The ULJ conceded that the receipt of disability

benefits does not imply one is not able to work. The ULJ also conceded that there was no suggestion

that Mr. Huston was not able and not available for work during the periods when he received disability benefits.

The ULJ still ruled that Huston was ineligible for u.c. benefits because he had applied for social security disability benefits.

Case #3

Challenging the Statute

The Minnesota U.C. statute made persons who met all other criteria for benefits ineligible based upon a single factor – disability.

Both the Minnesota Human Rights Act and the Americans with Disabilities Act prohibit discrimination based upon disability.

Case #3

ADA Title II

Title II states that “no qualified individual with disability” shall be “denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S.C.A. Sec. 12132



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Case #3

Settlement Discussion

The ADA defines disability with respect to an individual in the following manner: (A) a physical or mental impairment that

sustainably limits one or more of the major life activities of such an individual;

(B) a record of such impairment; or (C) being regarded as having such an

impairment.

Case #3

The State’s Argument at the Court of Appeals

State’s principal argument was that Huston was denied benefits based upon a presumption that he was unable to work, rather than a presumption of disability.The state made this argument despite the fact is ULJ stated, on the record, that there was no suggestion Huston was not able and available for work during the periods for which he was eligible for social security disability benefits.

Case #3

Disability vs. Inability to WorkResponse

Statute refers only to disability not inability to work.

If the standard had been inability to work, the statute would necessarily cover a lot of people who never apply for SSDI benefits.

Why did the ULJ state four times on the record that he was not presuming that Huston was not able to work?



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Case #3

The Decision

“We conclude that Minn. Stat, Sec. 268.085, subd. 4 (c), violates sections 12132 of Title IIof the ADA by denying a qualified individualwith disability the benefits and programs ofthis state.”

Case #3

Appeal to State Supreme Court The State appealed to the Minnesota Supreme

Court which granted cert.While the appeal was pending, the state legislature

modified the statute to eliminate the offending language.

In a brief supporting our case, AARP characterized the logic of the state in presuming an SSDI applicant disabled after previously making its own finding that the person was able to work as “Orwellian.”

Case #3

What should we do when we recognize bias in law, regulations, or ordinances?

Discussion

How can we recognize this bias?



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Case #4

Bias Against Students in Administering the Law:The Davidsavor Case

Instances of students facing bias based upon their student status are rare.

Recently, USLS represented a student in an unemployment compensation case where it was

clear to us that our client was being denied u.c. benefits because she was student.

Case #4

The Client

24 year old female student Final year of two-year program in

business at Carlson school Significant history of working full time

while attending school

Case #4

Initial Eligibility for U.C. Benefits

Davidsavor worked close to 40 hours per week in a restaurant for an entire year while attending Carlson School.

The restaurant where she worked closed.Davidsavor filed for and began receiving

u.c. benefits.



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Case #4

Availability for Work

Davidsavor had to fill out an application stating that she was able to perform and was available for work.

As a student, she also had to state that she would either quit school or adjust her class schedule if necessary.

Case #4

Additional Requirements

Davidsavor was required to periodically attend job search sessions.

She was expected to actively apply for jobs that related to her past employment.

She met all of these requirements over the course of several weeks.

Case #4

The Missed Appointment

Davidsavor was required to periodically attend job search sessions.

She was expected to actively apply for jobs that related to her past employment.

She met all of these requirements over the course of several weeks.



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Case #4

The Hearing Notice

Davidsavor was notified that a telephone hearing had been scheduled with a ULJ to determine if she had good cause to miss her job training session.

At the hearing, Ms. Davidsavor appeared without counsel.

After asking approximately five questions, the ULJ found that Ms. Davidsavor had good cause to miss the training.

Case #4

ULJ Expands the Hearing

ULJ asks Davidsavor if he can expand the hearing.

Threatens to hold another hearing later if she refuses.

Davidsavor agrees to an expanded hearing.

Case #4

Hearing Testimony

Davidsavor testified:1. She had actively sought work.2. She had received two job offers and accepted one.3. She would start work the next week.4. She could adjust her school schedule to

accommodate her work schedule



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Case #4

ULJ Decision

ULJ determined:1. Davidsavor has good cause for missing training

meeting.

But:2. Davidsavor was never eligible for u.c. benefits

because he did not believe she would quit school to take a job.

Case #4

ULJ Decision

Davidsavor was not available for work.

Davidsavor was not able to work.

Davidsavor was retroactively ineligible for benefits

Case #4

Court of Appeals DecisionReversal

Court found that ULJ’s Decision was not supported by substantial evidence on the record.

Court found that Davidsavor’s testimony that she could work things out with her professors allowed her to stay in school without sacrificing her eligibility for u.c. benefits.



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Case #4

Clearest case of bias against student basedupon student status.

Discussion

Students not a protected calls, but most are low income.

Bias needs to be addressed whenever it impacts person with limited means.

Unlikely that this bias could beovercome without counsel.



3rd Seminar, 12:10pm-2:15pm: “Ethics for the Criminally Involved* (*lawyers)” a panel presentation by Sarah Sicheneder, Judge Jonathan Jasper, & Nicole Kettwick (MN: 2.0 hours CLE Ethics credit)





3rd Seminar, 12:10pm-2:15pm: “Ethics for the Criminally Involved* (*lawyers)” a panel presentation by Sarah Sicheneder, Judge Jonathan Jasper, & Nicole Kettwick (IA: 2.0 hours CLE Ethics credit)





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• Q & A:




PANEL DISCUSSION

• This panel presentation will include a discussion about ethical considerations from a variety of perspectives within the criminal justice system – for general legal professionals, criminal defense attorneys, public defender attorneys, judges, and prosecutors.

• Panel Presenters:• Sarah Sicheneder

• Judge Jonathan Jasper

• Nicole Kettwick

Q & A

Panel Presenters:

• Sarah [email protected]

• Judge Jonathan [email protected](763) 422-7440

• Nicole Kettwick(763) [email protected]



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4th Seminar, 2:20pm-3:20pm: “Ethics and the Business of Advising Small Businesses” by Madina Ameerally of the Ameerally Law Office, PLLC (MN: 1.0 hours CLE Ethics credit)





4th Seminar, 2:20pm-3:20pm: “Ethics and the Business of Advising Small Businesses” by Madina Ameerally of the Ameerally Law Office, PLLC (IA: 1.0 Ethics credit)





• Q & A:






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ETHICS AND THEBUSINESS OF ADVISINGSMALL BUSINESSESMADINA AMEERALLY

AMEERALLY LAW OFFICE

AGENDA

• Catering to the progression of a small business

• Counseling Small Businesses as it relates to:

• Conflict of Interest

• Current Clients

• Competitor Clients

• Organization as Client

BUILD



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FORMATION BASICS

•Business Plan

•Location

•Finance

•Legal Structure

•Official Filings

•Employer Responsibilities

BUSINESS PLAN BASICS

•Mission/ Overview

•Product/Service

•Market

•Customer

•Finance

•Advertising

PROTECT



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INTELLECTUALPROPERTY

COPYRIGHT

TRADEMARK



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LICENSE

NON‐DISCLOSURE AGREEMENT

EMPLOYEERELATIONS



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• Employment Contracts• Non Disclosure

• Non Compete

• Social Media Policies

GROW

EFFICIENCY



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Expand

•Markets

• Franchises

• Licenses

CONFLICTS OF INTEREST



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BEING A CUSTOMER TO YOURCLIENTS BUSINESS

INVESTING

GIVING SPECIALTY ADVICE



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ORGANIZATION AS A CLIENT

CompetingInterests

DualRepresentation



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COMPETING CLIENTS

NicheAttorney

Competition



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Summary

• HolisticViewofSmallBusinesses• ConflictsofInterest• CurrentClients

• CompetitorClients• OrganizationasClient

THANKYOU

cle for good: seventh annual full ethics and elimination ... · and elimination of bias training...

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