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More lawyers describe pressure by Swanson to commit what they viewed as unethical conduct

By Eric Black | Tuesday, March 18, 2008
Several more present and former assistant attorneys general have described instances of pressure by Attorney General Lori Swanson, her predecessor Mike Hatch or their leadership team to commit what they consid

The instances are described in a letter submitted Friday by suspended Assistant Attorney General (AAG) Amy Lawler to Deputy Attorney General Karen Olson, Lawler’s immediate supervisor.

I was able to speak, on condition of anonymity, to four of the attorneys, who corroborated and expanded some of the accounts.

Lawler was suspended last week after going public with her own complaints about the way the attorney general’s office was being run. The letter placing Lawler on leave had ordered her to submit by Friday the details of her concerns, which Lawler did.

She also used the letter to give an overview of how she sees the dysfunction within the AG’s office, and to provide a blow-by-blow account of her brief, and bizarre, tenure in an office wracked by turnover, division, fear, politicization, unionization and an obsession with getting favorable media attention.

Lawler asserts the attorney general’s press secretary, who is not a lawyer, was allowed to edit her legal work, and says that on one occasion a media event to announce a lawsuit was canceled out of concern that the witnesses, who were to be presented to the media, “would not perform well at a press conference.”

She asserts that the official explanation that she was suspended for going public with her concerns is a “red herring,” and that she is really being punished for pro-union activities.

Swanson’s office has declined to release the Lawler letter, nor to comment on its allegations. In an email response to a request for comment, Swanson spokester Brian Bergson wrote: “The Minnesota Data Practices act makes it clear that any response by Ms. Lawler would be confidential at this time.” MinnPost’s offer to Swanson to publish her side of the story remains open.

MinnPost obtained this morning from Lawler a copy of what she sent to her bosses.  It consists of several parts and attachments. In a cover letter to her immediate supervisor, Deputy Attorney General Karen Olson, Lawler writes, “There are serious and valid concerns about the office, and placing me on leave does nothing to address them.” She asks to be reinstated, and for open dialogue between Swanson and her critics within the office. She says previous efforts to bring her concerns to the attention of the management “were met with hostility and disbelief.” She writes that the functioning of the office is hampered by the high rate of turnover and the atmosphere of fear within the office.

In a longer narrative of her first months in the office (she started there only in November 2007), Lawler goes over what she characterizes as improper union-busting activities by Swanson loyalists. MinnPost previously summarized her account. The detailed written version is attachment A of her submission to Olson.

The new allegations of ethical issues, provided by Lawler based on incidents reported to her by her by present and formers AAGs, include instances in which current and former members of Swanson’s staff said they were:

• Pressured by Hatch (Swanson’s mentor and predecessor who stayed on in the office for a portion of 2007 after Swanson was sworn in) to sign a civil investigative demand (CID) against a company without a basis to believe the company had violated the law. That attorney subsequently left the office.

• Pressured to go along with changes that Hatch and Swanson edited into an affidavit of a consumer’s complaint. The ethical problem was that the attorney who prepared the affidavit didn’t believe the changes were consistent with the statements made by the consumers. That attorney is still with the office, but subsequently received an involuntary transfer to a lower-profile division.

• Pressured to give a client advice that the attorney felt was not in the client’s best interest. This case involves an AAG who represented a state agency and believed the agency was entitled to be treated as a client under principles of legal ethics. The supervisor disputed that view, saying that an AAG’s client is the people of Minnesota, and that Swanson determined that client’s interests. The attorney later resigned.

• Instructed to pad an affidavit by adding statements that the witness on whose statements the affidavit was purportedly based did not make. This attorney is no longer with the AG’s office.

In the four alleged instances above, although the attorneys involved are unwilling to have their names published for fear of retribution, they added details to the brief account Lawler described in the letter. Other incidents, for which I have not confirmed details, are listed below as they were summarized in the Lawler letter.

In none of the cases above do the lawyers say that they followed the order or the pressure to commit acts that they felt were on ethical thin ice. The lawyer in the first instance did not sign the CID. The attorney in the second case rejected the editing changes and the matter was dropped, although the attorney’s unwillingness to make the changes may have contributed to a decline in his standing with Swanson and Hatch. The attorney who refused to give what she considered bad advice to the state agency did not give the advice. The attorney who was ordered to pad the affidavit did not do so, but did rework the affidavit and the issue blew over.

Lawler has recently become the public voice of a group of present and former AAG’s who are rebelling against what they describe as an atmosphere of intimidation. In general, they describe an office driven to advance the political prospects of Swanson, as they were by Hatch.

A group of AAGs have been trying to organize a union and at one point last year had obtained signed union cards from a majority of the lawyers in the office, although state law does not give them normal rights to force a union election.

The pro-union group argues that they need union protection in an environment where any criticism of disagreement with their bosses is taken as disloyalty and retaliated against. They say that the environment is interfering with the proper functioning of the office, including large amount of turnover. More than 50 of the roughly 135 AAG’s have resigned or been fired in the slightly more than one year since Swanson took office. All assistant attorneys general are “at will” employees, who can be fired for any reason. In her letter, Lawler called the turnover rate “staggering.” Swanson and Olson have said it is normal in the first year of a new administration.

Lawler is one of three pro-union attorneys who in February signed an open letter to Swanson, which was also posted on a public blog.

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Some Swanson responses
Although Swanson has declined to be interviewed about these issues, she did send a report to legislative leaders last week responding to some of the issues, and authorized Deputy Attorney General Karen Olson, Lawler’s supervisor, to meet with me briefly Thursday. Swanson’s letter said that a union would be illegal because it would interfere with the mission of the office. The law, she said, treats assistant attorneys general like the appointed aides to a governor. “Nobody would think that a governor or state legislator or U. S. Senator should not be able to change his or her staff,” Swanson wrote.

She wrote that some of the staff changes resulted from the presence on the staff of “some attorneys who frankly are not a good fit for our mission, including some who mistakenly view their jobs as ‘9 to 5’ positions. Having been solicitor general and deputy attorney general for eight years, I was familiar with the work and work habits of many of the attorneys, and some who were not good fits were asked to move on during my first year in office.” She asserted that turnover at the beginning of a new administration is normal and happened when Hatch took over in 1999.

Actually, there was not a similar amount of turnover in previous changes of administration. Warren Spannaus, the last attorney general to take over from a member of the opposite party, told me he didn’t fire anyone when he took office in 1971.

The purges of the early Hatch period were a break from the norm and laid the groundwork for the morale crisis that persists today.

And there is a logical problem with Swanson’s analogy between Hatch’s first year and her own. She was Hatch’s protégé and top assistant and would presumably not have to make room for her own trusted advisers. The closeness between Hatch and Swanson was reflected in her unprecedented decision to hire her predecessor as one of her top assistants as she took office.

Swanson moved into Hatch’s old office in the Capitol and he moved into her former office in the Bremer Building, where most of the attorneys work. Hatch became deeply involved in the work of AAGs filing publicity attracting cases.

The arrangement was deeply disheartening to those in the offices, who had felt pressured and intimidated during the Hatch years, and were hoping for a fresh start with a new AG. The unionization effort, which was launched in February of 2007, was partly motivated by the belief that the pressure and politicization of the Hatch years would continue under Swanson. As the intra-office political battle grew, Hatch urged loyalty to Swanson and tried to recruit attorneys to publicly praise her.

In her letter to legislators, Swanson also accused the union activists of making trouble to “stir the pot” because their organizing efforts were faltering.

Olson, the Swanson deputy who was authorized to speak to MinnPost last week, said the morale in the office was good, that the office does not pressure anyone to file non-meritorious lawsuits nor to commit unethical acts. She said that Lawler was not suspended for her union activities nor for speaking publicly but because, if she had ethical concerns, she should have taken them to the lawyers Board of Professional Responsibility.

I asked Olson and Bergson why so many present and former AAGs characterized the office as dysfunctional and why the AAGs were so fearful of retaliation by Hatch and Swanson if they spoke for attribution. Olson said she would not talk about personnel issues. Bergson said: “We’re not going to respond to anonymous claims from anonymous people.”

He also said that no one had been terminated or punished for union activity.

Lawler’s letter
A Minnesota native, graduate of Wellesley College and Harvard Law School, Lawler came home last year hoping for a career in public interest law and joined the AG’s Office in November.

In a previous MinnPost interview and in her letter to Olson, Lawler described an atmosphere that was tense, bordering on paranoid. There is a widespread feeling, which she shares, that the legal work of the office is substantially dedicated to advancing Swanson’s public image and political ambitions.

Attorneys who push back are subject to sudden changes in their status, up to being fired. Union activists have been demoted, fired or had their positions eliminated. Swanson loyalists circulate, trying to find out which attorneys are pro-union, which adds to the atmosphere of fear. When critical comments appear, anonymously, on the union organizers’ blog or in discussion threads on the blog of Minnesota Lawyer (here’s one example), supervisors pressure attorneys in the office to weigh in with positive comments.

Soon after her arrival, Lawler was ordered by Swanson to find someone in the mortgage foreclosure business to sue and file a case within a week. Lawler interpreted this as an example of Swanson seeking favorable media by jumping into an area that was much in the news. Many of the present and former AAGs I have interviewed said that Swanson (and Hatch before her) were very publicity oriented and sought cases and victims that would look good at press conferences that they would call to announce their lawsuits.

Lawler said her ethical concern with the directive was not the possible political motive but the pressure to find someone to sue within a week because that implied Swanson wanted a case whether or not there was a solid legal basis for one. Filing a non-meritorious suit would be unethical.

After taking the assignment, Lawler said, she found facts and witnesses to justify meritorious cases against mortgage foreclosure assistance companies. She said she didn’t file a complaint with the lawyers’ ethics board because she could ethically justify the cases that she filed in response to Swanson’s directive.

In defending the decision to put Lawler on administrative leave, Olson said Lawler had accused the office of filing “unethical lawsuits,” although Lawler’s actual statements, at least to me, stopped short of that, and one of the attachments to Lawler’s letter includes an email to Olson in which she specified that the cases had cleared the ethical standard before they were filed.

Other allegations
Lawler’s letter included references to colleagues — those whom I was not able to interview — who had told her they had:

• Been pressured by supervisors to post pro-Swanson comments on a public blog that was discussing complaints of the staff against Swanson. In one instance an attorney who had not written such comments found that they appeared in the blog under his name, without his consent. The attorney subsequently left the office.

• Been ordered to tell consumers that they were being invited to meet with the attorney general, and been directed not to tell the consumers that the event was also a press conference.

• Been hired with the explicit instruction that the position required loyalty to Swanson, and that those advocating for the union were not being loyal.

•Been ordered to violate a special master’s order, although the details of this incident are not clear and were not described in the letter.

Eric Black writes about state and national politics. He can be reached at eblack [at] minnpost [dot] com.

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