In the Matter of: Tessa Mortenson, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0246

In the Matter of: Tessa Mortenson,
Respondent,

vs.

Action for East African People,
Employer,

Debra Hilstrom,
Relator,

Department of Employment and Economic Development,
Respondent.

Filed September 3, 2024
Affirmed
Johnson, Judge

Department of Employment and Economic Development
File No. 50011469

Jason Steck, St. Paul, Minnesota (for relator)

Keith Ellison, Attorney General, Rachel Bell-Munger, Jennifer Moreau, Assistant
Attorneys General, St. Paul, Minnesota (for respondent department)

Catherine Boruff, Southern Minnesota Regional Legal Services, St. Paul, Minnesota (for
respondent Tessa Mortenson)

Considered and decided by Johnson, Presiding Judge; Bratvold, Judge; and Jesson,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
This appeal arises from a request to disqualify an attorney in an administrative
appeal concerning an application for unemployment benefits. We conclude that the chief
unemployment law judge did not err by granting the request on the ground that the attorney
previously had represented the opposing party in a substantially related matter. Therefore,
we affirm.
FACTS
The employer in the unemployment proceeding underlying this appeal is Action for
East African People (AFEAP), a non-profit corporation that operates a dental clinic in the
city of Bloomington known as Action Care Community Clinic. The former employee is
Tessa Mortenson, who was hired by AFEAP in January 2021. Mortenson was promoted
to the position of executive director of the dental clinic in March 2023. The previous
executive director of the clinic, Ayan Abukar (who apparently also was the executive
director of the non-profit corporation), had resigned her employment after being indicted
by federal prosecutors for allegedly misappropriating federal program funds that were
intended to be reimbursements of the costs of meals served to children. The indictment
alleged, among other things, that Abukar used AFEAP to commit fraud.
Between March and September 2023, Mortenson had numerous interactions with
AFEAP board members and with an attorney representing AFEAP, Jason Steck, related to
various issues arising from or complicated by Abukar’s departure. In September 2023,
Mortenson became aware that, despite Abukar’s apparent resignation, Abukar was
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continuing to act as executive director. In addition, the office of the state attorney general
was investigating AFEAP pursuant to its authority to regulate charitable organizations.
Steck represented AFEAP in connection with that investigation and sometimes asked
Mortenson to provide him with information and documents. Mortenson became concerned
that the information and documents she was asked to provide might be shared with Abukar
or with Debra Hilstrom, an attorney who was representing Abukar in the federal criminal
case. On one occasion , Steck warned Mortenson that she would be terminated if she did
not fully comply with his requests for information and documents. Mortenson sought
guidance from the AFEAP board as to whether she should provide information and
documents to Steck. On September 26, 2023, the AFEAP board chair discussed
Mortenson’s concerns with her in an oral conversation (which was recorded by Mortenson)
and stated that he would raise the issue at a board meeting. On September 28, 2023,
Mortenson complied with a civil investigative demand served on her by the attorney
general’s office, which required her to give oral testimony. The AFEAP board held a
special meeting and decided to terminate Mortenson’s employment. Steck communicated
the board’s decision to Mortenson on September 29, 2023.
In October 2023, Mortenson applied to the department of employment and
economic development for unemployment benefits. In her application, she asserted that
her termination was retaliatory. AFEAP, which initially was represented by Steck, asserted
in response that Mortenson was terminated for gross insubordination, theft of company
assets, exceeding her authority, and obstructing company operations. In November 2023,
the department made an initial determination that Mortenson is eligible for benefits on the
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ground that she was discharged “because of unsatisfactory work performance [that] was
not intentional or caused by negligence or indifference,” which is “not employment
misconduct.”
AFEAP, represented by Steck, requested an administrative appeal of the initial
determination. Ten days before a scheduled hearing on AFEAP’s administrative appeal,
the attorney representing Mortenson in the unemployment proceeding sent an e-mail
message to the chief unemployment law judge (ULJ), with a copy to Steck, requesting that
the hearing be conducted in person instead of telephonically due to the complexity of the
issues and the fact that the hearing was scheduled as a full-day hearing. Steck responded
by writing that he would be withdrawing as counsel for AFEAP and that Hilstrom would
represent AFEAP going forward, and he copied Hilstrom on the message.
Two days later, Mortenson’s attorney sent a nine-paragraph e-mail message to the
chief ULJ, with a copy to Hilstrom, to inform the chief ULJ that Hilstrom previously had
represented Mortenson and that Mortenson objected to her representation of AFEAP in the
unemployment proceeding. Specifically, Mortenson’s attorney stated that, only one year
earlier, Hilstrom had represented Mortenson in a civil lawsuit in district court, which was
described with sufficient detail, which we refrain from repeating here. Mortenson’s
attorney stated that Mortenson had shared sensitive confidential information with Hilstrom
and that such information could be relevant to AFEAP’s termination of Mortenson’s
employment. Hilstrom sent a responsive e-mail to the chief ULJ, and she and Mortenson’s
attorney thereafter sent a total of six additional e-mail messages to the chief ULJ
concerning whether Hilstrom should be disqualified.
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The chief ULJ acknowledged the correspondence, gave the participants an
opportunity to file formal written arguments, and stated her intention to review the
submissions and issue an order. Hilstrom filed a memorandum. Two days later, the chief
ULJ issued a five-paragraph order disqualifying Hilstrom from representing AFEAP in the
unemployment proceeding.
Hilstrom requested reconsideration of the disqualification order. Meanwhile,
AFEAP, represented again by Steck, requested a stay of the disqualification order and the
unemployment proceeding while Hilstrom pursued an appeal to this court. Both requests
were denied.
In March 2024, a ULJ conducted an evidentiary hearing on AFEAP’s appeal from
the initial determination of eligibility. One week later, the ULJ issued a written decision.
The ULJ specifically found that the testimony of AFEAP’ s board chair was not credible
and that Mortenson was not terminated for the reasons asserted by AFEAP. The ULJ found
that “AFEAP discharged Mortenson because she communicated opposition to Steck’s
plans and did not immediately give him all the information he asked for.” The ULJ stated
that “AFEAP had the right to reasonably expect that Mortenson, in her leadership role at
the dental clinic, would make decisions in the best interest of AFEAP and seek guidance
from the Board if needed” and further stated that Mortenson acted “out of concern for
AFEAP.” T he ULJ concluded that Mortenson was discharged for reasons other than
employment misconduct and, thus, is eligible to receive unemployment benefits.
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Hilstrom appeals by way of a writ of certiorari from the chief ULJ’s order
disqualifying her from representing AFEAP in the unemployment proceeding.
Mortenson’s entitlement to unemployment benefits is not at issue in this appeal.
DECISION
Hilstrom argues that the chief ULJ erred by disqualifying her from representing
AFEAP in the unemployment proceeding. Only the department has filed a responsive
brief. We note that a special term panel of this court previously determined that Hilstrom’s
appeal is not moot despite a final agency decision on Mortenson’s application for
unemployment benefits. Mortenson v. Action for East African People, No. A24 -0246,
2024 WL1006284, at *3 (Minn. App. Mar. 5, 2024) (order).
Hilstrom’s primary argument is that the chief ULJ misapplied an administrative rule
in granting Mortenson’s request for disqualification. The applicable rule provides, “An
unemployment law judge may refuse to allow a person to represent others in a hearing if
that person acts in an unethical manner.” Minn. R. 3310.2916 (2023). In applying th is
administrative rule, the chief ULJ referred to the rules of professional conduct, which
govern practicing attorneys and contain provisions specifically relating to the situation that
prompted Mortenson’s request for disqualification. See Minn. R. Prof. Conduct, preamble.
Hilstrom does not challenge the premise that the rules of professional conduct may inform
the chief ULJ’s decision.
The applicable rule of professional conduct provides, in part, “A lawyer who has
formerly represented a client in a matter shall not thereafter represent another person in the
same or a substantially related matter in which that person’s interests are materially adverse
7
to the interests of the former client unless the former client gives informed consent,
confirmed in writing.” Minn. R. Prof. Conduct 1.9(a). Another paragraph of the rule
contains an additional prohibition:
A lawyer who has formerly represented a client in a
matter . . . shall not thereafter:

(1) use information relating to the representation to
the disadvantage of the former client except as these rules
would permit or require with respect to a client, or when the
information has become generally known; or

(2) reveal information relating to the representation
except as these rules would permit or require with respect to a
client.

Minn. R. Prof. Conduct 1.9(c).
Hilstrom contends that the chief ULJ erred by determining that Mortenson’s prior
lawsuit and Mortenson’s application for unemployment benefits are substantially related
matters. The term “substantially related matter,” as used in rule 1.9(a), has two meanings.
It could mean either that two matters “involve the same transaction or legal dispute” or that
“there otherwise is a substantial risk that confidential factual information as would
normally have been obtained in the prior representation would materially advance the
client’s position in the subsequent matter.” Minn. R. Prof. Conduct 1.9, cmt. 3; see also
State ex rel. Swanson v. 3M Co., 845 N.W.2d 808, 816 (Minn. 2014). If disqualification is
sought based on the second meaning, the decisionmaker may presume that confidential
information was disclosed to the attorney “based on the nature of the services the lawyer
provided the former client and information that would in ordinary practice be learned by a
lawyer providing such services.” Minn. R. Prof. Conduct 1.9, cmt. 3. In other words, the
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concept of “substantially related matter” is broad enough to encompass any matter in which
an attorney may be presumed to have acquired confidential information from a client that
the attorney is prohibited from using to the former client’s disadvantage. See Niemi v. Girl
Scouts of Minnesota & Wisconsin Lakes & Pines, 768 N.W.2d 385, 392 (Minn. App. 2009).
In this case, Mortenson’s attorney informed the chief ULJ of Hilstrom’s prior
representation of Mortenson and stated that Mortenson had shared confidential information
with Hilstrom in the course of that representation. Mortenson’s attorney also informed the
chief ULJ that Mortenson might introduce evidence in the unemployment proceeding that
consists of or refers to the confidential information that Mortenson shared with Hilstrom
during the prior representation. That possibility created a substantial risk that Hilstrom’s
possession of confidential information obtained in the prior representation could be used
to materially advance AFEAP’s position in this matter, in which AFEAP was adverse to
Mortenson. See Minn. R. Prof. Conduct 1.9, cmt. 3. For that reason, the chief ULJ did not
err by reasoning that the two matters—Mortenson’s prior lawsuit and this unemployment
proceeding—are substantially related matters.
Hilstrom also contends that the chief ULJ’s decision is not supported by the factual
record, which consists primarily of the statements of Mortenson’s attorney in e-mail
messages to the chief ULJ. But the required factual showing is subject to a low threshold:
“A former client is not required to reveal the confidential information learned by the lawyer
in order to establish a substantial risk that the lawyer has confidential information to use in
the subsequent matter. ” Minn. R. Prof. Conduct 1.9, cmt. 3. Also, Mortenson was not
pressed by Hilstrom to disclose additional information because Hilstrom did not deny that
9
Mortenson had shared confidential information with her. Mortenson’s request was
adequately supported by her attorney’s representation that Mortenson might introduce
evidence implicating the confidential information that she had disclosed to Hilstrom to
establish a statutory exception to employment misconduct. See Minn. Stat. § 268.095,
subd. 6(b) (2022). In conducting certiorari review, this court seeks to determine only
whether the agency’s decision “was arbitrary, oppressive, unreasonable, fraudulent, under
an erroneous theory of law, or without any evidence to support it.” Anderson v.
Commissioner of Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quotation omitted);
see also Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). The chief ULJ’s
disqualification decision is supported by evidence in the agency record.
Hilstrom also contends that the chief ULJ erred by disqualifying her “based on
speculative future conduct rather than misconduct that had already occurred.” Hilstrom
relies on language in the administrative rule providing that a person may be prevented from
representing a party if the person “acts in an unethical manner.” Minn. R. 3310.2916.
Hilstrom contends that this language did not authorize the chief ULJ to disqualify her
before she acts in an unethical manner. But Hilstrom had commenced her representation
of AFEAP before she was disqualified . Steck sent an e-mail to the chief ULJ and
Mortenson’s attorney, stating, “Hilstrom is the new attorney for AFEAP on this matter and
will address AFEAP’s position on this request.” Hilstrom proceeded to communicat e
directly with the chief ULJ, both by e-mail and by submitting a memorandum. The chief
ULJ’s ruling is consistent with the customary practice in district courts, in which it is
common for a party to move to disqualify opposing counsel soon after opposing counsel
10
enter an appearance. For example, in Niemi, the plaintiff moved to disqualify the
defendant’s attorney soon after the defendant served its answer, for reasons similar to the
reasons that motivated Mortenson’s request in this case. 768 N.W.2d at 386. This court
stated that the rule of professional conduct on which the request is based—the same rule
as in this case—“is essentially a prophylactic measure that prevents a violation of rules
1.6(a) and 1.9(c) when such a violation is either so likely to occur or so likely to be
damaging to the former client that the risk of the violation cannot be tolerated.” Id. at 392;
see also National Texture Corp. v. Hymes, 282 N.W.2d 890, 894 (Minn. 1979) (stating that
“purpose for disqualification of [a former] attorney . . . is to ensure the attorney’s absolute
fidelity and to guard against inadvertent use of confidential information” ). Thus,
Hilstrom’s conduct was within the scope of the administrative rule.
Hilstrom also contends that the chief ULJ erred on the ground that the
disqualification decision is contrary to an advisory opinion that she received before
entering her appearance. Hilstrom contends that the chief ULJ is not “empowered to
overrule the Board of Professional Responsibility in its interpretation of the rules of
professional conduct” and not “qualified to differ from the conclusions of the Board of
Professional Responsibility.” Hilstrom mentioned the advisory opinion in her e-mail
messages to the chief ULJ, but she did not submit a written advisory opinion, so there was
no way for the chief ULJ to know the facts on which the opinion was based and to confirm
the substance of the opinion. At oral argument in this court, Hilstrom’s attorney clarified
that Hilstrom sought and received an advisory opinion by telephone from the office of
lawyers professional responsibility (OLPR), not an advisory opinion from the board of
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professional responsibility. The OLPR’s website states that opinions provided via its
“ethics hotline” are based on the facts provided by the person requesting an opinion and
that such opinions “are not intended to bind or influence any court or other adjudicatory
body.”
1 Thus, the chief ULJ was not bound by the oral advisory opinion that Hilstrom
obtained from OLPR.
Hilstrom also contends that the chief ULJ did not make adequate findings of fact
and did not engage in adequate legal analysis. The chief ULJ’s analysis of Mortenson’s
request consists of five paragraphs, which succinctly summarize the relevant facts and cite
the applicable rules. Because the relevant facts are essentially undisputed, there was no
need for additional fact-finding, and the legal basis of the chief ULJ’s decision is
sufficiently clear.
We last consider Hilstrom’s argument that the ULJ erred by violating her
constitutional right to due process in three ways. The department argues in its responsive
brief that Hilstrom has not cited any authority for the proposition that she has a
constitutionally protected liberty interest in representing AFEAP in one particular
administrative proceeding. We are unaware of any such authority. Accordingly, we
conclude that Hilstrom cannot prove a due-process claim because she does not have a
constitutionally protected liberty interest. See Werlich v. Schnell, 958 N.W.2d 354, 371-73
(Minn. 2021).

1See Lawyers Professional Responsibility Board, Advisory Opinions (Ethics
Hotline), https://lprb.mncourts.gov/LawyerResources/Pages/AdvisoryOpinions.aspx
[https://perma.cc/23Y6-9C4L].
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Even if Hilstrom had a constitutionally protected liberty interest, she would not be
able to prove that she was denied due process in the three ways she has identified. She first
contends that the chief ULJ denied her due process by allowing Mortenson to make her
request by e- mail. Hilstrom cites no authority for the proposition that e-mail
communications are inconsistent with due process in this context. In any event, Hilstrom
was included in the e- mail correspondence, and she sent as many e- mail messages to the
chief ULJ as Mortenson’s attorney sent. Also, the ULJ gave both Mortenson and Hilstrom
an opportunity to file formal memoranda, and Hilstrom filed such a memorandum, which
ensured that she was heard.
Hilstrom next contends that the chief ULJ denied her due process by ruling on
Mortenson’s request without requiring Mortenson to submit evidence in the form of an
affidavit. Again, Hilstrom cites no authority for the proposition that a sworn statement is
constitutionally required in connection with a request to disqualify an attorney in an
administrative proceeding. The chief ULJ considered Mortenson’s request in a manner
that is consistent with the department’s general practice in unemployment proceedings, in
which a ULJ “may receive any evidence that possesses probative value, including hearsay,”
and “is not bound by statutory and common law rules of evidence.” See Minn. R.
3310.2922 (2023).
Hilstrom last contends that the chief ULJ denied her due process by not conducting
an evidentiary hearing. Once again, Hilstrom cites no authority for the proposition that an
evidentiary hearing is constitutionally required upon a request to disqualify an attorney in
a single administrative proceeding. Furthermore, Hilstrom did not request an evidentiary
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hearing, and she has made no proffer on appeal to describe the evidence that she would
have introduced at an evidentiary hearing. It is difficult to imagine what additional facts
might have been introduced or elicited at an evidentiary hearing because Mortenson was
not obligated to reveal the confidential information that she shared with Hilstrom in the
prior representation. See Minn. R. Prof. Conduct 1.9, cmt. 3.
In sum, the chief ULJ did not err by disqualifying Hilstrom from representing
AFEAP in the unemployment proceeding.
Affirmed.