Quandaries and Quagmires: Allen Saeks: More than 50 years of legal ethics

Editor’s note:  For the column this month, Chuck Lundberg met with Allen Saeks of the Stinson Leonard Street firm.  Lundberg notes that Allen is one of the lions of the Bar in Minnesota and one of the pioneers in Minnesota legal ethics.¹

Chuck: Allen, when did you join the firm then known as Leonard, Street and Deinard?

Allen: It was March 1960. I believe I was the ninth lawyer in the firm. We are about 450 lawyers today.

Chuck: What was your first involvement in legal ethics?

Allen: Well, I was appointed by the Supreme Court to serve on the first Board of Professional Responsibility in 1970.² That was a very interesting time; one of the first big issues was whether we should have any non-lawyers on the board.  I vigorously fought for having lay members because I thought it would be important to have input from non-lawyers as well as lawyers in deciding whether to discipline lawyers.

Chuck: And the record reflects your efforts to ensure lay member members on the Board were successful.  (See fn.2)

So, with that historical perspective and then going forward, how would you characterize the changes in the way ethics is observed or not observed in the practice of law over the last 50 years?

Allen: Well, of course there have been dramatic changes in the rules on professional responsibility over the years. It was then unethical for a lawyer to advertise, for example. Minimum fee schedules were strictly enforced. An amorphous “appearance of impropriety” standard governed.

It seems to me that, as an arm of the Supreme Court, the Lawyers Board has had a major role over the years in helping define and modernize the ethics rules under which we all must practice.

Chuck: One area that certainly has become more prominent recently is conflicts of interest. Has that area changed a lot?

Allen: Yes. While the idea of a lawyer having a conflict of interest was certainly recognized back then, it has become much more important, in litigation especially. Disqualification motions were almost unheard of back then.  Now, litigation counsel always seem to be looking for conflicts that they might use in some strategic way in the case. Disqualification of counsel has become more and more of an issue in which advocates seek to disqualify opposing counsel and get them out of the case entirely, especially if, perhaps, they were particularly good at what they did.

The newest twist is waiver — we’ve seen several instances recently where there was undue delay in raising an alleged conflict and moving to disqualify counsel. One of them was the 3M case in which a prestigious New York firm was involved.³

Chuck: And of course, you have been a long-time leader in your firm as an ethics partner.

Allen: I served for many years as general counsel to the firm. As best I can recall, we were one of the first firms in which firm counsel was a definite area of concentration within the firm. I became very conversant with the ethics rules concerning what was required to comply, and how practically to deal with potential problems.

In more recent years, the general counsel of various local law firms, especially the large firms, would get together regularly and talk about new ethics issues.

Chuck: And that continues today. The Firm Counsel group, consisting of the ethics partner or general counsel of the twenty-five largest firms in Minneapolis, all meet twice a year, to do exactly what you said. But it seems to me that maybe over the years the firm counsel role has changed a little bit, from being just pure ethical conduct as lawyers to more of a risk management role.

Allen: Yes, and that’s a good point — I remember that, in addition to ensuring we were complying with the rules of professional responsibility, one my tasks as counsel to the firm was to see that we wouldn’t be sued for alleged malpractice.

Chuck: How about lateral lawyers – was that even “a Thing” back in the old days?  It sure is now.  Lawyers changing law firms seems to have be increased dramatically, and it can lead to some new forms of conflicts, right?

Allen:  Absolutely.  When I first started practicing law — and for decades thereafter — there was loyalty to the law firm you worked for. You joined a firm and stayed there until you retired. You would not be looking around to go to another firm either to make more money, for example, or to take clients with you and offer them as an incentive for a new firm to hire you away from your present firm. It just wasn’t done then.

But over the years, I’ve seen it develop to the point that today, lawyers often move from one firm to another. There’s been a tremendous increase in that activity by many firms:  Look for an attorney in another firm who may have important, lucrative clients—say, for example, in technology, an area the acquiring firm doesn’t have expertise in, but which it sees as an area to exploit and to grow its practice. Find that lawyer and make him or her an offer.

There are potentially huge conflicts of interest that can arise during that process. Some firms have had to decline to employ lateral attorneys who they wanted to hire because doing so would have posed conflicts of interest risks that were simply not resolvable.

Chuck: You’ve been very active in the bar association for a long time; you were the president of the Hennepin County Bar in 1983-84.

Allen: Yes, it was something that I really enjoyed doing because I liked to work with other lawyers on issues that were important to the bar and at the same time it was in the best interest of clients of law firms and lawyers.

Chuck: Around that time, you spearheaded a brilliant new idea – mandatory IOLTA trust accounting procedures, to harvest interest on lawyers’ trust accounts as a funding source for legal aid and worthy charitable endeavors for the improvement of the administration of justice. Ultimately, the concept of IOLTA swept the entire country.

Allen: Yes. The concept came out of Florida. Their program was voluntary, however; lawyers did not have to participate. But one of the keys to success in an IOLTA program, both in Minnesota and nationally, was to make it mandatory.  No one had tried that before.

I was appointed to chair an MSBA Task Force to see whether an IOLTA program would be feasible in Minnesota.  We ultimately recommended that the program be under the jurisdiction of the Minnesota Supreme Court and that it be mandatory. It was the first mandatory IOLTA program in the country. There are now IOLTA programs in all 50 states.

Chuck: Thanks, Allen.  I will close by congratulating your foresight in your most recent endeavor — endowing an innovative new program at the University of Minnesota Law School – a tremendous example of giving back to the legal community.

Chuck Lundberg is recognized nationally as a leader in the areas of legal ethics and malpractice.  He is a former chair of the Minnesota Lawyers Board and spent 35 years as a partner at Bassford Remele. He now consults with and advises attorneys and law firms on the law of lawyering through Lundberg Legal Ethics.

Footnotes

1. Allen’s professional accomplishments and awards are legion. Minnesota Lawyer Attorney of the Year, Outstanding Service to the Profession Award. Chaired the “Saeks Committee,” appointed by the Minnesota Supreme Court to evaluate the lawyer disciplinary system in the state of Minnesota. Best Lawyers in America in multiple categories. First recipient of the Richard S. Arnold Award for Distinguished Service and Lifetime Achievement. Law Day Testimonial Award for pro bono contributions to Legal Aid. Pro Bono Publico Attorney Award. City of Minneapolis Award recipient for community service. HCBA Professionalism Award.

2. Before the creation of the Board, attorney discipline cases were prosecuted by the Board of Bar Examiners. When the Court established the Board of Professional Responsibility in 1970, it was the start of a professionalization of the disciplinary process in Minnesota. Staff lawyers were hired to handle the cases. Interestingly, it appears that even then the District Ethics Committees were involved in investigations.  A list of the first board members can be found here.

That article also indicates that Allen was eminently successful in advocating for lay members on that first Board:

On February 1, 1974, Dr. Philip C. Helland, Burnsville, became the third lay member of the Board. Dr. Helland is Chancellor, Minnesota State Junior Colleges, and has wide recognition in the field of education.  He joins John R. Finnegan, Executive Editor, St. Paul Pioneer Press and Dispatch, and civic leader; and Mrs. O. J. (Irene) Janski, Richfield, a member of the National Board of League of Women Voters, who also has state and community credits too numerous to mention here.

3. 3M v. Covington & Burling sought disgorgement of millions of dollars of legal fees, based on an alleged breach of fiduciary duty by the law firm. That claim arose out of 3M’s disqualification motion against Covington, which was litigated for five years, up to the Supreme Court and back. The damage case settled quietly earlier this year, shortly before it was scheduled for trial in Ramsey County. In the underlying DQ matter, the Supreme Court recognized for the first time that a motion to disqualify counsel is subject to the waiver doctrine.  State v. 3M, 845 N.W.2d 808 (Minn. 2014).

The Minnesota Law Public Interest Residency Program

In 2016, the University of Minnesota Law School launched a new program that guarantees enrollees future employment in the public interest or government law sectors.

Established via a gift from Allen Saeks (and wife Linda), the Minnesota Law Public Interest Residency Program aims to connect high-achieving 3Ls to their future employers via full-time externships. Upon graduation, those students would be guaranteed a full-time job.

A number of organizations have partnered on the venture, including the Hennepin County Attorney’s Office, Mid-Minnesota Legal Aid, Minneapolis City Attorney’s Office, Office of the Public Defender, Second District (Ramsey County), Ramsey County Attorney’s Office, and Wisconsin State Public Defender’s Office.

It has been described as a “trifecta win”: students get excellent hands-on legal training from premier local organizations and agencies; the organizations get top-tier law students to help meet their legal needs; and the University of Minnesota Law School spearheads a groundbreaking legal education program.