M LAW January 21, 2002 TTORNEYS OF THE YEAR CHARLES E....

MINNESOTA LAWYER January 21, 2002

ATTORNEYS OF THE YEAR

By Barbara L. Jones

The term “grace under pres-sure” could have been coinedto suit Charles E. Lundberg,

an attorney with a stutter who hasforged an outstanding career inappellate advocacy. Lawyers andjudges agree that Lundberg’s speechimpediment — which he is the firstto mention in a conversation — isforgettable after a few minutes of lis-tening to the substance of what hehas to say.

Lundberg, a partner in theMinneapolis firm of Bassford,Lockhart, Truesdell & Briggs, receivedthe accolades of his peers last yearwhen he was awarded the President’sAward from the Minnesota DefenseLawyers Association (MDLA) in recog-nition of his service to the profession.

Lundberg, who recently completeda five-year term as chair of the MDLAAmicus Curiae Committee, has alsoserved on the Minnesota LawyersProfessional Responsibility Boardfor the past 10 years, and as theboard’s chair since 1998. He handlesa variety of appeals and otherwisepractices mainly in the area of legalethics and malpractice. All told, hiscurriculum vitae makes him alawyer’s lawyer, in more ways thanone.

GO-TO GUYThese days, Lundberg’s arguments

generally center around defendinglegal malpractice cases, which is thefocus of his practice. He’s a go-to guyfor lawyers in trouble.

Lundberg has always found this areaof the law fascinating. As a law student,he wrote “Client Fraud and the Lawyer— An Ethical Analysis” for theMinnesota Law Review. As a young

associate, he was asked to write anarticle about legal malpractice at aboutthe same time Minnesota LawyersMutual Insurance Co. (MLM), whichwrites malpractice coverage for manylawyers, was getting off the ground andwas a client of his firm.

“Fixing” potential claims is a largepart of a malpractice lawyer’s prac-tice, says Lundberg. Both the mainlocal carriers of malpractice insur-ance, MLM and The Saint PaulCompanies, are very committed toclaim repair, says Lundberg.

“As soon as a lawyer realizes he orshe may have done somethingwrong, the lawyer should report itimmediately to the malpractice carri-er, who often will be able to retain alawyer to try to remedy the prob-lem,” he says. “I’ve done a lot ofclaim repair. It’s a very interestingpractice because you get to learnabout a lot of different areas of lawand you get to fix a problem.”

For example, Lundberg frequently

will come in to help bring a motionunder Rule 60.02 of the MinnesotaRules of Civil Procedure, to reopen adismissed case on the grounds ofexcusable neglect.

“Normally we’ll be behind thescenes so an outsider wouldn’t evenknow we were there,” he observes.“What otherwise would have becomea malpractice case gets turnedaround.” Other times he will work on

A LAWYER’S LAWYER IN MORE WAYS THAN ONE

CHARLES E. LUNDBERG:

Born: 1951, MinneapolisEducation: University of MinnesotaLaw School, J.D., cum laude, 1978 (edi-tor, Minnesota Law Review); Universityof Minnesota, B.A., cum laude, Phi BetaKappa, 1975Bar Admission: Minnesota, Colorado,U.S. District Court, District ofMinnesota, 7th U.S. Circuit Court ofAppeals and 8th U.S. Circuit Court ofAppeals; United States Supreme CourtProfessional Experience: Bassford,Lockhart, Truesdell & Briggs, P.A., 1980-present (shareholder, 1985-present);William Mitchell College of Law,adjunct professor, 1985-1989; Mullin,Weinberg & Daly, P.A., 1978-79Bar Activities: Minnesota LawyersProfessional Responsibility Board(chair); Douglas K. Amdahl Inn ofCourt; Association of ProfessionalResponsibility Lawyers, American BarAssociation, Minnesota State BarAssociation; Hennepin County BarAssociation; Minnesota DefenseLawyers Association (former chair,amicus curiae committee) Family: Wife, Kathy; two sons, twodaughtersOther activities: Daily workout at theArena Club; teaching adult classes atchurch; an occasional game of billiards

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an appeal after an adverse verdict, ortry to reform an instrument that hasbeen erroneously drafted.

Of course, not all potential claimscan be repaired. The legal argumentsare also challenging and enjoyablefor Lundberg.

“The principles of legal malpracticelaw are clear cut and analytical, so toa great extent it’s a summary judg-ment practice,” he says. “We get a lotof cases thrown out because theplaintiff cannot meet the legalrequirements to bring a claim. Youcannot sue if you did not have anattorney-client relationship. You nor-mally may not proceed unless youhave an expert. You cannot survivesummary judgment unless you canprove up ‘but for’ causation. Thecourts will not allow the client toachieve through a malpractice law-suit what couldn’t have beenachieved in the commercial arena.Otherwise lawyers become insurersof their own clients and that’s notfair.”

Being sued for malpractice is, ofcourse, a lawyer’s nightmare.Lundberg says there are many differ-ent reactions to such claims, rangingfrom the philosophical (a lawyermay shrug, “that’s what I have insur-ance for”) to the outraged.Sometimes outrage is appropriate.

“We do see from time to time a mal-practice case that’s simply not a col-orable claim,” he says. “It’s never funfor the lawyer, who has to spend alot of non-billable time with me. Itcan be a terrible disruption of one’spractice, and it can hurt to be calledunprofessional.”

But Lundberg likes having lawyersfor clients. “They know you are help-ing them, they understand the con-

cepts and can appreciate it when youget a good result. They can tell whenyou are fighting the good fight ontheir behalf.”

Ironically, Lundberg is currently adefendant in a much-publicized law-suit — albeit definitely not for attor-ney malpractice. He is being sued inhis capacity as chair of the LawyersProfessional Responsibility Board bythe Minnesota Republican Party andformer judicial candidate GregWersal. The case involves the consti-tutionality of Minnesota’s ethicalrestrictions on candidates runningfor judicial office. The 8th U.S.Circuit Court of Appeals foundagainst the plaintiffs, but the U.S.Supreme Court recently acceptedreview of the portion of the case per-taining to speech restrictions.Specifically, the U.S. Supreme Courtis considering if the ethical rules pre-venting judicial candidates from stat-ing their views on disputed legal orpolitical issues violate the FirstAmendment. (See “U.S. high court toreview judicial election restriction”in the Dec. 10, 2001, edition ofMinnesota Lawyer.)

“As an appellate attorney I’vealways dreamed of appearing beforethe Supreme Court, but not as a liti-gant,” jokes Lundberg, who plans toattend the oral argument later thisspring.

THE BAD WITH THE GOODAnother way to fight the good fight

on behalf of lawyers, says Lundberg,is through his role as chair of theLawyers Professional ResponsibilityBoard. The board is the volunteerarm of the Minnesota Supreme Courtoverseeing legal ethics enforcementand works with the director and pro-fessional staff of the Office ofLawyers Professional Responsibility.

Lundberg sees the roles of the boardand office as twofold: to root out thebad lawyers and to protect the goodlawyers.

The director of the Office ofLawyers Professional Responsibility,Ed Cleary, characterizes Lundbergand the work of the board and office:“While our mandate has been andcontinues to be the protection of thepublic, we have shared the concernthat the professional conduct oflawyers should be viewed throughthe real world of the practice of law.Chuck has helped maintain thisfocus and greatly served the profes-sion in doing so.”

In many cases the lawyers whohave committed unethical acts sim-ply don’t know what is right andneed to be reminded, says Lundberg.“Then we never see them again.”

The board doesn’t get a lot ofrecognition for protecting the goodlawyers’ reputation, says Lundberg.“It’s equally important for the boardto say clearly if a complaint doesn’thave merit — and that’s much moreoften than not. Most complaints endup with a determination that disci-pline isn’t warranted.”

That means that members of thepublic sometimes end up unhappywith the board, he notes.

“It’s their perception that thislawyer did something terribly bad andwe’re protecting our own,” Lundbergexplains. “In the first place, it’s not‘our own’ because we have a numberof lay people on the board. But somepeople can’t deal with the fact thatthey are just wrong. I’ve gottenscathing letters about what terriblepeople we are and that part is frus-trating. Usually I will write back. It’simportant to communicate to the


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public that we care about this, so Iwrite back to explain that the matteris done and we regret they aren’thappy with the result. But some peo-ple just won’t let go.”

The lawyers who come before theboard tend to take one of twoapproaches, according to Lundberg.One approach is the lawyer whoadamantly refuses to admit he or shedid anything wrong, and is abusiveor litigious about it. The other is thelawyer who owns up to the mistakeand is genuinely remorseful.

“If you see someone owning up towhat they did and feeling bad aboutit — and is sincere, which is notalways the case — both the lawyersboard and the Office of ProfessionalResponsibility are happy, happy towork things out amicably. There will,of course, be some kind of ramifica-tion. Being remorseful doesn’t giveyou a ‘get out of jail free’ card — butit will go much easier on that lawyer.It’s so much more pleasant to workwith that person. I think theSupreme Court feels the same way.Those cases usually are resolved bystipulation,” Lundberg explains.

As most lawyers know, the mostcommon sources of ethical com-plaints derive from untimely actionsand failure by lawyers to communi-cate with their clients. The lawyersmay be overworked, they may belazy or tend to procrastinate, or theymay have other life problems such assubstance abuse or mental illness.

When a problem occurs, says Lundberg,the lawyer needs to be emotionallymature enough to go to the client anddeal with it. Sometimes it’s a simple “all Ineed to know I learned in kindergarten”approach, says Lundberg. “We teach ourchildren about appropriate relational

skills; when you’ve wronged someoneyou go to them, apologize, and try tomake it right.”

But larger life problems are behinda goodly number of ethical missteps,says Lundberg.

“People who have life problems likethat by and large aren’t dealing withthings rationally. They need a spouseor a partner or a good friend, some-one who cares, to tell them, ‘youhave a problem, we need to work onit.’ The best results from those situa-tions are when the lawyer comes tothe realization that there is a prob-lem and deals with it forthrightly andthen comes back and becomes arespected, reputable lawyer again.And the lawyer is much healthiertoo.”

The American Bar Association(ABA) is in the process of adopting anew standard of ethical rules, after alengthy investigation and hearingprocess by the Ethics 2000Commission. Lundberg expects a“substantial rewrite” of the rules ofprofessional conduct with recom-mendations available in late 2002 or2003. The various states then willhave to decide whether to adopt theABA rules, which Minnesota doesnot always do, notes Lundberg.

“Minnesota is ahead of the curvenationally, on issues including dis-closure of client fraud, sexualinvolvement with clients, conflicts ofinterests when attorneys and clientshave business relationships, andimputed conflicts when attorneysmake lateral employment moves,” hesays. “Minnesota is where the ABA isgoing,” he explains.

CHANGE OF VENUEOver the past few years Lundberg

also has brought a unique focus on

ethics and malpractice to the venueof continuing legal education (CLE).He describes himself as a “decidedlyunorthodox” CLE presenter. Ratherthan lecturing, he requires the audi-ence to participate in a law school-like Socratic dialogue, engagingthem in a discussion of real-lifehypotheticals that vividly illustratepotential ethical conflicts and otherproblem areas in the law of lawyer-ing.

According to those who have seenthese presentations, this can be anextremely effective teaching tool.Lundberg uses a humorous and gen-tly self-deprecating speaking style,“demanding” the audience getinvolved, eliciting comments andideas from the attendees, provokingthem to think about how conflictsand malpractice claims arise in thereal world and how practical avoid-ance techniques and strategies canbe developed to deal with them.Later this spring, Lundberg will betaking the show on the road, speak-ing at an ABA national legal malprac-tice conference in Charleston, S.C.,on “The Interplay and TensionBetween Malpractice and Ethics.”

Lundberg has also developed simi-lar in-house CLE programs for someof his local client law firms. He seesa huge potential for law firms to helptheir lawyers satisfy their CLE ethicscredit requirements in an in-house orfirm retreat setting, specifically tai-lored to address particular conflictsand other problems that arise in thatfirm’s own practice areas. Heexplains, “When you can get a room-ful of partners and associates talkingto each other in a rigorous way aboutserious ethical issues that come up

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in their daily practice, it almostalways results in an invigorating andfirm spirit-building experience. Afterall, every single lawyer in the firmhas to get three ethics credits some-where every three years. Why not doit in a creative way, with your part-ners, in a program closely focusedon your own practice?”

MAKING POLICYUntil recently, Lundberg wore a

third hat as chair of the MinnesotaDefense Lawyers Association(MDLA) Amicus Curiae committee.Like the attorney who “fixes” whatcould be a malpractice case, the ami-cus attorney also works behind thescenes. The amicus isn’t concernedwith the parties to the case, but triesto present “the big picture” — or atleast one side of it. That’s the key toa good amicus brief, says Lundberg.

Recently, the MDLA has weighed inon a number of hot topics in the pro-fession. Among other cases, it hassubmitted briefs in several importantSupreme Court cases:

• Herrman v. McMenomy &Severson et al. — A cause of actionfor legal malpractice accrues and thestatute of limitations begins to runwhen the plaintiff’s cause of actionwould survive a motion to dismissfor failure to state a claim uponwhich relief can be granted.

• Witzman v. Lehrman, Lehrman& Flom — Dismissal of fraud, rack-eteering and aiding and abetting tor-tious conduct claims based on rou-tine professional services by anaccountant.

• Goeb v. Tharaldson — The Frye-Mack standard for admissibility ofscientific evidence, requiring novelscientific evidence to be both gener-

ally accepted and reliable, remainsthe standard in Minnesota.

• Dohney v. Allstate — An underin-sured motorist (UIM) insurer maynot deny UIM benefits to its insuredbased on the insured’s failure toreach the best settlement with thetortfeasor.

“We’re darn proud of Chuck,” saidKathryn Davis Messerich, presidentof MDLA. “Chuck received thePresident’s Award because of hislong-term service to the amicus com-mittee. He has been a constant pres-ence on the committee and gener-ously volunteers his time to ensurethe MDLA has opportunities to beheard.”

Whether arguing for a client or asan amicus, Lundberg gets a lot of joyfrom his work. “I like what I do, Ihave an enjoyable job and great part-ners. Frequently I’m in on the cre-ation of what will be a rule of law. Ihave the honor of being able to argueone side. You always want to win,but the importance to the law tran-scends one case — even if the clientsdon’t understand that. It’s a chanceto do something important and help-ful to the profession.”

SUBSTANCE AND SPIRITLundberg quickly shrugs off any

suggestion that it is courageous toforge a career in appellate advocacywhen his stutter sometimes makes itdifficult to get the words out.

“For some reason people arealways interested in how I deal withmy stutter when I go into court. It’sreally not a big deal. Normally I willstart out by mentioning it, just tobreak the ice, saying something suchas, ‘As the court may recall, I have alittle trouble with my speech. I willtry to speak fluently.’”

His speech is not the source of

tremendous concern, nervousnessand embarrassment that it was whenhe started practicing.

“I’ve become more comfortablewith it,” Lundberg observes. I’ve alsobeen able to apply some speech ther-apy tricks that I’ve learned, likeslowing down the rate of my speechand sliding into words. Then I havemore control over it. ‘To-me-this-sounds-very-unnatural-to-talk-like-this,’ but when I do I can control mystutter. So I will do that in argumentsif I’m having a particularly hard time.If I’m really stuttering badly I willjust stop, nod to the court, take adeep breath and start over.”

Lundberg says his stutter was moreof an issue at the start of his career.

“When I was a young associatebeginning in a trial firm, the seniorpartners were very up-front with meabout their concerns about whatclients might think, Lundbergrecalls. “The clients would have beeninsurance company claims lawyersand claims representatives, who hadhandled hundreds of trials. The prob-lem was a perception of a perception— how does the insurance represen-tative perceive how the jury wouldperceive me? There was some con-cern there; I didn’t get to try a lot ofcases and I still haven’t, really. It’scertainly true that I’ve tried fewercases than other lawyers my age inthis firm. But you don’t get a lot oflegal malpractice cases tried anyway.They either get thrown out on sum-mary judgment or they get settled.Plus, I’ve branched out into appeals.”

“The time limit for appellate oralargument has never been an issue,”says Lundberg. “I would never evendream of asking for more time.Everyone has a short time limit and

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part of the challenge and the art of agood oral argument is putting whatyou have to say in a short time,” hesays.

“I taught legal writing for severalyears, and I used to tell students,‘rank what you have to say in orderof importance. What are the 10 mostimportant sentences about this case?Write those down and no matterwhat, say those 10 things.’ That’show I try to handle it. I think, by andlarge, the courts respect me for thesubstantive stuff, which is what thecourts are there for.”

Judges who spoke to MinnesotaLawyer do respect Lundberg for thesubstantive stuff but they alsorespect his spirit.

“He’s a very strong person to standup there without apology or, I think,fear of ridicule. He doesn’t give upand everybody hangs in there with

him,” says U.S. District Court JudgeDavid Doty.

Minnesota Supreme Court AssociateJustice Paul Anderson agrees, saying,“It takes a lot of backbone to come tocourt with a stutter. I have told him,‘you have to know you are welcome inthis court at any time. Your stutter in noway interferes with your advocacy.’”

Anderson recalled the first timeLundberg appeared in front of him. Avery short time into the argument,says Anderson, he forgot about thestutter. “A good argument hits arhythm and there is a very intenselevel of concentration. I don’t knowif his stutter went away only in mymind, but it wasn’t a factor.”

Anderson speculates that perhaps,due to his stutter, Lundberg is morethoroughly prepared for his argu-ments.

Minnesota Court of Appeals JudgeBruce Willis comments, “Chuck isvery effective not because of how he

says something but because of whathe says. He has an enormous store ofcredibility that is much more impor-tant than smooth delivery. He makesconcessions where they need to bemade and he doesn’t misrepresentthe record.”

Doty jokes that when he is temptedto fill in a word for Lundberg, he justwaits for Lundberg to come up witha word — and it’s usually a betterone.

In the final analysis, says Lundberg,the accolades of peers are not asimportant as his family. He creditshis wife Kathy and their four chil-dren with helping him keep things inperspective. “In the end, no matterwhat you do for your clients or theprofession, your family is the realbarometer of your life. Without that,and some spiritual focus, the restdoesn’t really matter.”

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