CHARLES LUNDBERG

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					                                                       MINNESOTA LAWYER                                           January 21, 2002



                         ATTORNEYS                             OF THE                   YEAR
                CHARLES E. LUNDBERG:
                         A    LAWYER ’S LAWYER IN MORE WAYS THAN ONE
By Barbara L. Jones
                                                                                       Born: 1951, Minneapolis
       he term “grace under pres-                                                      Education: University of Minnesota

T      sure” could have been coined
       to suit Charles E. Lundberg,
an attorney with a stutter who has
                                                                                       Law School, J.D., cum laude, 1978 (edi-
                                                                                       tor, Minnesota Law Review); University
                                                                                       of Minnesota, B.A., cum laude, Phi Beta
forged an outstanding career in                                                        Kappa, 1975
appellate advocacy. Lawyers and                                                        Bar Admission: Minnesota, Colorado,
judges agree that Lundberg’s speech                                                    U.S. District Court, District of
impediment — which he is the first                                                     Minnesota, 7th U.S. Circuit Court of
to mention in a conversation — is                                                      Appeals and 8th U.S. Circuit Court of
forgettable after a few minutes of lis-                                                Appeals; United States Supreme Court
tening to the substance of what he                                                     Professional Experience: Bassford,
has to say.                                                                            Lockhart, Truesdell & Briggs, P.A., 1980-
  Lundberg, a partner in the                                                           present (shareholder, 1985-present);
Minneapolis      firm     of Bassford,                                                 William Mitchell College of Law,
Lockhart, Truesdell & Briggs, received                                                 adjunct professor, 1985-1989; Mullin,
the accolades of his peers last year                                                   Weinberg & Daly, P.A., 1978-79
when he was awarded the President’s                                                    Bar Activities: Minnesota Lawyers
Award from the Minnesota Defense                                                       Professional Responsibility Board
Lawyers Association (MDLA) in recog-                                                   (chair); Douglas K. Amdahl Inn of
nition of his service to the profession.    associate, he was asked to write an        Court; Association of Professional
  Lundberg, who recently completed          article about legal malpractice at about   Responsibility Lawyers, American Bar
a five-year term as chair of the MDLA       the same time Minnesota Lawyers            Association, Minnesota State Bar
Amicus Curiae Committee, has also           Mutual Insurance Co. (MLM), which          Association; Hennepin County Bar
served on the Minnesota Lawyers             writes malpractice coverage for many       Association;    Minnesota       Defense
Professional Responsibility Board           lawyers, was getting off the ground and    Lawyers Association (former chair,
for the past 10 years, and as the           was a client of his firm.                  amicus curiae committee)
board’s chair since 1998. He handles          “Fixing” potential claims is a large     Family: Wife, Kathy; two sons, two
a variety of appeals and otherwise          part of a malpractice lawyer’s prac-       daughters
practices mainly in the area of legal       tice, says Lundberg. Both the main         Other activities: Daily workout at the
ethics and malpractice. All told, his       local carriers of malpractice insur-       Arena Club; teaching adult classes at
curriculum vitae makes him a                ance, MLM and The Saint Paul               church; an occasional game of billiards
lawyer’s lawyer, in more ways than          Companies, are very committed to
one.                                        claim repair, says Lundberg.               will come in to help bring a motion
                                              “As soon as a lawyer realizes he or      under Rule 60.02 of the Minnesota
             G O - TO   GUY                 she may have done something                Rules of Civil Procedure, to reopen a
  These days, Lundberg’s arguments          wrong, the lawyer should report it         dismissed case on the grounds of
generally center around defending           immediately to the malpractice carri-      excusable neglect.
legal malpractice cases, which is the       er, who often will be able to retain a      “Normally we’ll be behind the
focus of his practice. He’s a go-to guy     lawyer to try to remedy the prob-          scenes so an outsider wouldn’t even
for lawyers in trouble.                     lem,” he says. “I’ve done a lot of         know we were there,” he observes.
  Lundberg has always found this area       claim repair. It’s a very interesting      “What otherwise would have become
of the law fascinating. As a law student,   practice because you get to learn          a malpractice case gets turned
he wrote “Client Fraud and the Lawyer       about a lot of different areas of law      around.” Other times he will work on
— An Ethical Analysis” for the              and you get to fix a problem.”
Minnesota Law Review. As a young              For example, Lundberg frequently                     lundberg ➣ Page 2
                                                     MINNESOTA LAWYER                                      January 21, 2002 I 2




                       ATTORNEYS                             OF THE                   YEAR
               CHARLES E. LUNDBERG:
➣ From Page 1                             cepts and can appreciate it when you       Lundberg sees the roles of the board
                                          get a good result. They can tell when      and office as twofold: to root out the
an appeal after an adverse verdict, or    you are fighting the good fight on         bad lawyers and to protect the good
try to reform an instrument that has      their behalf.”                             lawyers.
been erroneously drafted.                   Ironically, Lundberg is currently a        The director of the Office of
  Of course, not all potential claims     defendant in a much-publicized law-        Lawyers Professional Responsibility,
can be repaired. The legal arguments      suit — albeit definitely not for attor-    Ed Cleary, characterizes Lundberg
are also challenging and enjoyable        ney malpractice. He is being sued in       and the work of the board and office:
for Lundberg.                             his capacity as chair of the Lawyers       “While our mandate has been and
  “The principles of legal malpractice    Professional Responsibility Board by       continues to be the protection of the
law are clear cut and analytical, so to   the Minnesota Republican Party and         public, we have shared the concern
a great extent it’s a summary judg-       former judicial candidate Greg             that the professional conduct of
ment practice,” he says. “We get a lot    Wersal. The case involves the consti-      lawyers should be viewed through
of cases thrown out because the           tutionality of Minnesota’s ethical         the real world of the practice of law.
plaintiff cannot meet the legal           restrictions on candidates running         Chuck has helped maintain this
requirements to bring a claim. You        for judicial office. The 8th U.S.          focus and greatly served the profes-
cannot sue if you did not have an         Circuit Court of Appeals found             sion in doing so.”
attorney-client relationship. You nor-    against the plaintiffs, but the U.S.         In many cases the lawyers who
mally may not proceed unless you          Supreme Court recently accepted            have committed unethical acts sim-
have an expert. You cannot survive        review of the portion of the case per-     ply don’t know what is right and
summary judgment unless you can           taining to speech restrictions.            need to be reminded, says Lundberg.
prove up ‘but for’ causation. The         Specifically, the U.S. Supreme Court       “Then we never see them again.”
courts will not allow the client to       is considering if the ethical rules pre-     The board doesn’t get a lot of
achieve through a malpractice law-        venting judicial candidates from stat-     recognition for protecting the good
suit what couldn’t have been              ing their views on disputed legal or       lawyers’ reputation, says Lundberg.
achieved in the commercial arena.         political issues violate the First         “It’s equally important for the board
Otherwise lawyers become insurers         Amendment. (See “U.S. high court to        to say clearly if a complaint doesn’t
of their own clients and that’s not       review judicial election restriction”      have merit — and that’s much more
fair.”                                    in the Dec. 10, 2001, edition of           often than not. Most complaints end
  Being sued for malpractice is, of       Minnesota Lawyer.)                         up with a determination that disci-
course, a lawyer’s nightmare.               “As an appellate attorney I’ve           pline isn’t warranted.”
Lundberg says there are many differ-      always dreamed of appearing before           That means that members of the
ent reactions to such claims, ranging     the Supreme Court, but not as a liti-      public sometimes end up unhappy
from the philosophical (a lawyer          gant,” jokes Lundberg, who plans to        with the board, he notes.
may shrug, “that’s what I have insur-     attend the oral argument later this          “It’s their perception that this
ance for”) to the outraged.               spring.                                    lawyer did something terribly bad and
Sometimes outrage is appropriate.                                                    we’re protecting our own,” Lundberg
  “We do see from time to time a mal-        T HE   BAD WITH THE GOOD                explains. “In the first place, it’s not
practice case that’s simply not a col-      Another way to fight the good fight      ‘our own’ because we have a number
orable claim,” he says. “It’s never fun   on behalf of lawyers, says Lundberg,       of lay people on the board. But some
for the lawyer, who has to spend a        is through his role as chair of the        people can’t deal with the fact that
lot of non-billable time with me. It      Lawyers Professional Responsibility        they are just wrong. I’ve gotten
can be a terrible disruption of one’s     Board. The board is the volunteer          scathing letters about what terrible
practice, and it can hurt to be called    arm of the Minnesota Supreme Court         people we are and that part is frus-
unprofessional.”                          overseeing legal ethics enforcement        trating. Usually I will write back. It’s
  But Lundberg likes having lawyers       and works with the director and pro-       important to communicate to the
for clients. “They know you are help-     fessional staff of the Office of
ing them, they understand the con-        Lawyers Professional Responsibility.                   lundberg ➣ Page 3
                                                          MINNESOTA LAWYER                                     January 21, 2002 I 3




                          ATTORNEYS                               OF THE                  YEAR
                  CHARLES E. LUNDBERG:
➣ From Page 2
                                               skills; when you’ve wronged someone       ethics and malpractice to the venue
public that we care about this, so I           you go to them, apologize, and try to     of continuing legal education (CLE).
write back to explain that the matter          make it right.”                           He describes himself as a “decidedly
is done and we regret they aren’t                But larger life problems are behind     unorthodox” CLE presenter. Rather
happy with the result. But some peo-           a goodly number of ethical missteps,      than lecturing, he requires the audi-
ple just won’t let go.”                        says Lundberg.                            ence to participate in a law school-
  The lawyers who come before the                “People who have life problems like     like Socratic dialogue, engaging
board tend to take one of two                  that by and large aren’t dealing with     them in a discussion of real-life
approaches, according to Lundberg.             things rationally. They need a spouse     hypotheticals that vividly illustrate
One approach is the lawyer who                 or a partner or a good friend, some-      potential ethical conflicts and other
adamantly refuses to admit he or she           one who cares, to tell them, ‘you         problem areas in the law of lawyer-
did anything wrong, and is abusive             have a problem, we need to work on        ing.
or litigious about it. The other is the        it.’ The best results from those situa-     According to those who have seen
lawyer who owns up to the mistake              tions are when the lawyer comes to        these presentations, this can be an
and is genuinely remorseful.                   the realization that there is a prob-     extremely effective teaching tool.
  “If you see someone owning up to             lem and deals with it forthrightly and    Lundberg uses a humorous and gen-
what they did and feeling bad about            then comes back and becomes a             tly self-deprecating speaking style,
it — and is sincere, which is not              respected, reputable lawyer again.        “demanding” the audience get
always the case — both the lawyers             And the lawyer is much healthier          involved, eliciting comments and
board and the Office of Professional           too.”                                     ideas from the attendees, provoking
Responsibility are happy, happy to               The American Bar Association            them to think about how conflicts
work things out amicably. There will,          (ABA) is in the process of adopting a     and malpractice claims arise in the
of course, be some kind of ramifica-           new standard of ethical rules, after a    real world and how practical avoid-
tion. Being remorseful doesn’t give            lengthy investigation and hearing         ance techniques and strategies can
you a ‘get out of jail free’ card — but        process by the Ethics 2000                be developed to deal with them.
it will go much easier on that lawyer.         Commission. Lundberg expects a            Later this spring, Lundberg will be
It’s so much more pleasant to work             “substantial rewrite” of the rules of     taking the show on the road, speak-
with that person. I think the                  professional conduct with recom-          ing at an ABA national legal malprac-
Supreme Court feels the same way.              mendations available in late 2002 or      tice conference in Charleston, S.C.,
Those cases usually are resolved by            2003. The various states then will        on “The Interplay and Tension
stipulation,” Lundberg explains.               have to decide whether to adopt the       Between Malpractice and Ethics.”
  As most lawyers know, the most               ABA rules, which Minnesota does             Lundberg has also developed simi-
common sources of ethical com-                 not always do, notes Lundberg.            lar in-house CLE programs for some
plaints derive from untimely actions             “Minnesota is ahead of the curve        of his local client law firms. He sees
and failure by lawyers to communi-             nationally, on issues including dis-      a huge potential for law firms to help
cate with their clients. The lawyers           closure of client fraud, sexual           their lawyers satisfy their CLE ethics
may be overworked, they may be                 involvement with clients, conflicts of    credit requirements in an in-house or
lazy or tend to procrastinate, or they         interests when attorneys and clients      firm retreat setting, specifically tai-
may have other life problems such as           have business relationships, and          lored to address particular conflicts
substance abuse or mental illness.             imputed conflicts when attorneys          and other problems that arise in that
  When a problem occurs, says Lundberg,        make lateral employment moves,” he        firm’s own practice areas. He
the lawyer needs to be emotionally             says. “Minnesota is where the ABA is      explains, “When you can get a room-
mature enough to go to the client and          going,” he explains.                      ful of partners and associates talking
deal with it. Sometimes it’s a simple “all I                                             to each other in a rigorous way about
need to know I learned in kindergarten”                C HANGE    OF VENUE               serious ethical issues that come up
approach, says Lundberg. “We teach our          Over the past few years Lundberg
children about appropriate relational          also has brought a unique focus on                   lundberg ➣ Page 4
                                                    MINNESOTA LAWYER                                     January 21, 2002 I 4




                       ATTORNEYS                            OF THE                  YEAR
               CHARLES E. LUNDBERG:
➣ From Page 3                             ally accepted and reliable, remains      tremendous concern, nervousness
                                          the standard in Minnesota.               and embarrassment that it was when
in their daily practice, it almost          • Dohney v. Allstate — An underin-     he started practicing.
always results in an invigorating and     sured motorist (UIM) insurer may           “I’ve become more comfortable
firm spirit-building experience. After    not deny UIM benefits to its insured     with it,” Lundberg observes. I’ve also
all, every single lawyer in the firm      based on the insured’s failure to        been able to apply some speech ther-
has to get three ethics credits some-     reach the best settlement with the       apy tricks that I’ve learned, like
where every three years. Why not do       tortfeasor.                              slowing down the rate of my speech
it in a creative way, with your part-       “We’re darn proud of Chuck,” said      and sliding into words. Then I have
ners, in a program closely focused        Kathryn Davis Messerich, president       more control over it. ‘To-me-this-
on your own practice?”                    of MDLA. “Chuck received the             sounds-very-unnatural-to-talk-like-
                                          President’s Award because of his         this,’ but when I do I can control my
         M AKING    POLICY                long-term service to the amicus com-     stutter. So I will do that in arguments
  Until recently, Lundberg wore a         mittee. He has been a constant pres-     if I’m having a particularly hard time.
third hat as chair of the Minnesota       ence on the committee and gener-         If I’m really stuttering badly I will
Defense      Lawyers      Association     ously volunteers his time to ensure      just stop, nod to the court, take a
(MDLA) Amicus Curiae committee.           the MDLA has opportunities to be         deep breath and start over.”
Like the attorney who “fixes” what        heard.”                                    Lundberg says his stutter was more
could be a malpractice case, the ami-       Whether arguing for a client or as     of an issue at the start of his career.
cus attorney also works behind the        an amicus, Lundberg gets a lot of joy      “When I was a young associate
scenes. The amicus isn’t concerned        from his work. “I like what I do, I      beginning in a trial firm, the senior
with the parties to the case, but tries   have an enjoyable job and great part-    partners were very up-front with me
to present “the big picture” — or at      ners. Frequently I’m in on the cre-      about their concerns about what
least one side of it. That’s the key to   ation of what will be a rule of law. I   clients might think, Lundberg
a good amicus brief, says Lundberg.       have the honor of being able to argue    recalls. “The clients would have been
  Recently, the MDLA has weighed in       one side. You always want to win,        insurance company claims lawyers
on a number of hot topics in the pro-     but the importance to the law tran-      and claims representatives, who had
fession. Among other cases, it has        scends one case — even if the clients    handled hundreds of trials. The prob-
submitted briefs in several important     don’t understand that. It’s a chance     lem was a perception of a perception
Supreme Court cases:                      to do something important and help-      — how does the insurance represen-
  • Herrman v. McMenomy &                 ful to the profession.”                  tative perceive how the jury would
Severson et al. — A cause of action                                                perceive me? There was some con-
for legal malpractice accrues and the          S UBSTANCE    AND SPIRIT            cern there; I didn’t get to try a lot of
statute of limitations begins to run        Lundberg quickly shrugs off any        cases and I still haven’t, really. It’s
when the plaintiff’s cause of action      suggestion that it is courageous to      certainly true that I’ve tried fewer
would survive a motion to dismiss         forge a career in appellate advocacy     cases than other lawyers my age in
for failure to state a claim upon         when his stutter sometimes makes it      this firm. But you don’t get a lot of
which relief can be granted.              difficult to get the words out.          legal malpractice cases tried anyway.
  • Witzman v. Lehrman, Lehrman             “For some reason people are            They either get thrown out on sum-
& Flom — Dismissal of fraud, rack-        always interested in how I deal with     mary judgment or they get settled.
eteering and aiding and abetting tor-     my stutter when I go into court. It’s    Plus, I’ve branched out into appeals.”
tious conduct claims based on rou-        really not a big deal. Normally I will     “The time limit for appellate oral
tine professional services by an          start out by mentioning it, just to      argument has never been an issue,”
accountant.                               break the ice, saying something such     says Lundberg. “I would never even
  • Goeb v. Tharaldson — The Frye-        as, ‘As the court may recall, I have a   dream of asking for more time.
Mack standard for admissibility of        little trouble with my speech. I will    Everyone has a short time limit and
scientific evidence, requiring novel      try to speak fluently.’”
scientific evidence to be both gener-       His speech is not the source of                    lundberg ➣ Page 5
                                                      MINNESOTA LAWYER                                       January 21, 2002 I 5




                       ATTORNEYS                              OF THE                    YEAR
               CHARLES E. LUNDBERG:
➣ From Page 4                             him,” says U.S. District Court Judge         says something but because of what
                                          David Doty.                                  he says. He has an enormous store of
part of the challenge and the art of a      Minnesota Supreme Court Associate          credibility that is much more impor-
good oral argument is putting what        Justice Paul Anderson agrees, saying,        tant than smooth delivery. He makes
you have to say in a short time,” he      “It takes a lot of backbone to come to       concessions where they need to be
says.                                     court with a stutter. I have told him,       made and he doesn’t misrepresent
  “I taught legal writing for several     ‘you have to know you are welcome in         the record.”
years, and I used to tell students,       this court at any time. Your stutter in no    Doty jokes that when he is tempted
‘rank what you have to say in order       way interferes with your advocacy.’”         to fill in a word for Lundberg, he just
of importance. What are the 10 most         Anderson recalled the first time           waits for Lundberg to come up with
important sentences about this case?      Lundberg appeared in front of him. A         a word — and it’s usually a better
Write those down and no matter            very short time into the argument,           one.
what, say those 10 things.’ That’s        says Anderson, he forgot about the            In the final analysis, says Lundberg,
how I try to handle it. I think, by and   stutter. “A good argument hits a             the accolades of peers are not as
large, the courts respect me for the      rhythm and there is a very intense           important as his family. He credits
substantive stuff, which is what the      level of concentration. I don’t know         his wife Kathy and their four chil-
courts are there for.”                    if his stutter went away only in my          dren with helping him keep things in
  Judges who spoke to Minnesota           mind, but it wasn’t a factor.”               perspective. “In the end, no matter
Lawyer do respect Lundberg for the          Anderson speculates that perhaps,          what you do for your clients or the
substantive stuff but they also           due to his stutter, Lundberg is more         profession, your family is the real
respect his spirit.                       thoroughly prepared for his argu-            barometer of your life. Without that,
  “He’s a very strong person to stand     ments.                                       and some spiritual focus, the rest
up there without apology or, I think,       Minnesota Court of Appeals Judge           doesn’t really matter.”
fear of ridicule. He doesn’t give up      Bruce Willis comments, “Chuck is
and everybody hangs in there with         very effective not because of how he

				
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