Is Too, Is Not, Is Too, repeat
Schrödinger’s lawyers, or when is you partner not your partner?
The charges and countercharges of skulduggery in the Minnesota House last week have been magnificent to watch; there is little use in my contributing to it, save on one issue. Max Nesterak of the Minnesota Reformer sets it up well in House Republicans move to hire legislator’s colleagues for legal defense in quorum case. By ‘colleagues’ the headline means partners and an associate or of counsel lawyer to Rep. Harry Niska’s Minnetonka law firm.
The case is about the meaning of a quorum, and whether the Republicans charging ahead without the DFL is legal or ultra vires.
Republican members of the House Rules and Legislative Administration Committee, currently chaired by Niska, unanimously approved a resolution to hire attorneys Nicholas Nelson, Samuel Diehl and Ryan Wilson to represent the House of Representatives on the taxpayer’s dime.
Nelson and Diehl are both partners with Niska at the small Minnetonka law firm CrossCastle. Wilson, a former candidate for state auditor, is also an attorney at the firm.
A sputtering Niska responds that, Oh, no, it’s not my firm; it’s lawyers in my firm. That’s completely different.
This is a lie. My law firm is not hired.
The only money I’m getting from the House is my pay for doing my job. DFL legislators should show up and do their jobs instead of suing to prevent the House from doing our work. https://t.co/dn1SrvhZUi
— Rep. Harry Niska (@HarryNiska) January 17, 2025
Personally, I have my doubts about that. Niska and the three lawyers identified above, especially partners Nelson and Diehl, are a community of common economic interest. If somebody were to ask questions of Niska about this – say, taking his deposition – the questions might include:
- Do you and Nelson, Diehl and Wilson occupy the same office space?
- Do you all have keys to the door?
- Do you each carry business cards identifying the individual and the law firm affiliation?
- Are you, Nelson and Diehl shareholders in the firm? Is Wilson an employee? If not, does he have an obligation to help pay the overhead of the firm?
- Who pays the lease, paid for the furnishings, and pays the firm’s staff? Do you all use these resources? Do you all have access to the firm’s client file room and files?
- Are the four of you insured under the same errors and omissions (malpractice) insurance policy? Do you all use the same client IOLTA (trust account) or does each lawyer have his own?
- Does the firm have a committee to screen new clients for conflicts of interest? Who decides if a new engagement may be accepted?
- Are bills sent by the firm, or do each of you send them individually? When they are paid, do clients pay each lawyer separately, or are the payments deposited in a firm account?
- Who makes the decisions about the allocation of firm revenue, expenses, and income? Did you discuss this engagement with your partners? Do members of the firm receive a bonus for the origination of engagements from new or existing clients?
Well, you get the idea. It is just inconceivable that a couple of law firm partners would just go off and accept a major representation, use the firm’s resources and insurance, keep the revenue, and claim they’d done it on their own.
The E&O carrier probably wouldn’t cover the engagement, now that I think about it.
I know Harry Niska. He’s a smart guy. Smart enough to know this soft shoe of his isn’t going to fly. Or if it does, the Capitol media are really asleep at the switch. Niska chairs (as “majority leader,” he really runs) the Republican Caucus (not House) Rules Committee which engaged the lawyers from Niska’s firm. If the Supreme Court rules against the caucus and Niska’s colleagues, the payments to them will be, ipso facto, unauthorized and will have to be returned. The lawyers “retained” obviously know the issue that will be litigated.
Regardless of the outcome, by retaining lawyers from Niska’s firm and helping them earn revenue, which benefits the firm (of which Niska is a stakeholder) and pays its expenses, Harry Niska has received a private benefit from his public service. That’s graft.
Graft refers to the acquisition of money, power, or other advantages through dishonest or illegal means, particularly through the abuse of one’s position or influence in politics or business. It’s a form of corruption that often involves the misuse of public funds or resources for personal gain by individuals in positions of power.
It doesn’t matter, as Niska protests, that they’re really good lawyers and represented Donald Trump. That’s just advertising.
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