attorney-client privilege in Minnesota

2023Cf. Kobluk, 574 N.W.2d at 441-44 (reasoning that preliminary drafts of a document were protected from compelled disclosure by the attorney-client privilege, even though the third and final draft was intended to be disclosed to a third party and was ultimately disclosed to that third party).

2016A threshold matter in determining privilege is whether the communication is one “in which legal advice is sought or rendered.” Id. at 444 . “‘[A]s a barrier to testimonial disclosure, the privilege tends to suppress relevant facts and must be strictly construed.’” Id. at 440 (quoting Kahl v. Minn. Wood Specialty, Inc., 277 N.W.2d 395, 399 (Minn. 1979)). 8 Truscott’s purported instruction to her lawyer not to disclose the Heartland report was not given for the purpose of seeking legal advice and therefore is not protected by the attorney-client privilege.

2014The OML serves the purpose of promoting full public information and permitting and encouraging public participation in the governing process; the attorney-client privilege creates “absolute confidentiality.” Prior Lake American, 642 N.W.2d at 736-37 . “[T]he attorney-client privilege exception to the Open Meeting Law applies when the balancing of purposes served by the attorney-client privilege against those served by the Open Meeting Law dictates the need for absolute confidentiality.” Id. at 737 .

2014The OML serves the purpose of promoting full public information and permitting and encouraging public participation in the governing process; the attorney-client privilege creates “absolute confidentiality.” Prior Lake American, 642 N.W.2d at 736-37 . “[T]he attorney-client privilege exception to the Open Meeting Law applies when the balancing of purposes served by the attorney-client privilege against those served by the Open Meeting Law dictates the need for absolute confidentiality.” Id. at 737 .

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2016A threshold matter in determining privilege is whether the communication is one “in which legal advice is sought or rendered.” Id. at 444 . “‘[A]s a barrier to testimonial disclosure, the privilege tends to suppress relevant facts and must be strictly construed.’” Id. at 440 (quoting Kahl v. Minn. Wood Specialty, Inc., 277 N.W.2d 395, 399 (Minn. 1979)). 8 Truscott’s purported instruction to her lawyer not to disclose the Heartland report was not given for the purpose of seeking legal advice and therefore is not protected by the attorney-client privilege.

1981As recognized in Kahl v. Minnesota Wood Specialty, Inc., 277 N.W.2d 395 (Minn. 1977), the attorney-client privilege is a barrier to disclosure and tends to suppress relevant facts and, as such, must be strictly construed.

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2026See Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that the Sixth Amendment provides a “right to counsel that is free from conflicts of interest”); Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (stating that the United States and Minnesota Constitutions provide criminal defendants “the right to the effective assistance of counsel” (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984))); State v. McNeilly, 6 N.W.3d 161, 184 (Minn. 2024) (noting that an attorney “can only effectively fulfill [their] roles as counselor, intermediary, and advocate if the client, assu

2017Federal caselaw has recognized that the attorney-client privilege must, if necessary, yield “to ensure the level of cross-examination demanded by the Sixth Amendment.” Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004); cf. State v. Evans, 756 N.W.2d 854, 872 (Minn. 2008) (acknowledging that privileges must give way to a defendant’s right to confrontation in narrow circumstances).

2017Federal caselaw has recognized that the attorney-client privilege must, if necessary, yield “to ensure the level of cross-examination demanded by the Sixth Amendment.” Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004); cf. State v. Evans, 756 N.W.2d 854, 872 (Minn. 2008) (acknowledging that privileges must give way to a defendant’s right to confrontation in narrow circumstances).

2016Motors Corp., 209 F.3d 1051, 1055 (8th Cir. 2000) (“A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication at issue.”).

2011Motors Corp., 209 F.3d 1051, 1055 (8th Cir.2000) ("A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication at issue.”); Sedco Int’l, S.A. v. Cory, 683 F.2d 1201 , 1206 (8th Cir.1982) ("Courts have found waiver by implication when a client ... places the attorney-client relationship directly at issue, and when a client asserts reliance on an attorney's advice as an element of a claim or defense.” (citations omitted)).

2015“The existence of the [attorney-client] privilege is a question of fact which must be proved by the one asserting it.” Sprader v. Mueller, 265 Minn. 111, 117 , 121 N.W.2d 176, 180 (1963).

2015“The existence of the [attorney-client] privilege is a question of fact which must be proved by the one asserting it.” Sprader v. Mueller, 265 Minn. 111, 117 , 121 N.W.2d 176, 180 (1963).

2015The attorney-client privilege protects from disclosure “communications that seek'- to elicit legal advice from an attorney acting in that capacity, that relate to that purpose, and that are made in confidence by the client ... unless the privilege is waived.” Nat’l Texture Corp. v. Hymes, 282 N.W.2d 890, 895 (Minn.1979).

2015The attorney-client privilege protects from disclosure “communications that seek to elicit legal advice from an attorney acting in that capacity, that relate to that purpose, and that are made in confidence by the client . . . unless the privilege is waived.” Nat’l Texture Corp. v. Hymes, 282 N.W.2d 890, 895 (Minn. 1979).

2002We exercised this power in HRA to establish the attorney-client privilege exception to the Open Meeting Law. ‘Words and phrases which have acquired an established meaning by judicial construction are deemed to be used in the same sense in a subsequent statute relating to the same subject matter.” Minn. Wood Specialties, Inc. v. Mattson, 274 N.W.2d 116, 119 (Minn.1978); see State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996) (stating that prior judicial efforts to define a term may guide a court’s interpretation of a statute).

2002"Words and phrases which have acquired an established meaning by judicial construction are deemed to be used in the same sense in a subsequent statute relating to the same subject matter." Minn. Wood Specialties, Inc. v. Mattson, 274 N.W.2d 116, 119 (Minn.1978); see State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996) (stating that prior judicial efforts to define a term may guide a court's interpretation of a statute).

2002In HRA, we confronted the conflict between "the basic principles of the attorney-client privilege" and "the public's right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest." Id. at 318 , 251 N.W.2d at 623 .

2002In HRA, we confronted the conflict between "the basic principles of the attorney-client privilege" and "the public's right to be informed of all actions and deliberations made in connection with activities geared to ultimately affect the public interest." Id. at 318 , 251 N.W.2d at 623 .

2024The scope of an implicit waiver of the attorney-client privilege is limited to “communications relevant to that issue.” Walen, 563 N.W.2d at 752 ; see also Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed.

2016See Walen, 563 N.W.2d at 752 (recognizing that a client implicitly waives the attorney-client privilege when the client “alleges a breach of duty to him by the attorney” (quotation omitted)); State ex rel.

1998Co., 241 Minn. 15, 33 , 62 N.W.2d 688, 700 (1954).

1998Co., 241 Minn. 15, 33 , 62 N.W.2d 688, 700 (1954).

2024Thus, a waiver by the client of the work[-]product privilege will not deprive the attorney of his own work[-]product privilege, and vice versa.” In re Grand Jury Proc., 43 F.3d 966, 972 (5th Cir. 1994); see also In re Special Sept. 1978 Grand Jury, 640 F.2d 49, 63 (7th Cir. 1980); First Wis. Mortg.

2024Provider Google, Inc., 802 F.3d 516, 530 (3d Cir. 2015) (reprimanding prosecutors where they “include[d] a non-attorney federal agent at the first level of review, followed by review by independent attorney federal agents” because “first level of privilege review should be conducted by an independent . . . attorney”); see also Baltimore Law Firm, 942 F.3d at 177 (remanding for greater privilege protections where “the [privilege protocol] authorized paralegals and IRS and DEA agents to designate seized documents as nonprivileged”). 24 Law enforcement does not need a court’s permission to review

2024The physician-patient privilege is included on the list, Minn. Stat. § 595.02 , subd. 1(d), and is “solely a creature of statute.” State v. Atwood, 925 N.W.2d 626, 631 (Minn. 2019).

2024Thus, a waiver by the client of the work[-]product privilege will not deprive the attorney of his own work[-]product privilege, and vice versa.” In re Grand Jury Proc., 43 F.3d 966, 972 (5th Cir. 1994); see also In re Special Sept. 1978 Grand Jury, 640 F.2d 49, 63 (7th Cir. 1980); First Wis. Mortg.

2024The scope of an implicit waiver of the attorney-client privilege is limited to “communications relevant to that issue.” Walen, 563 N.W.2d at 752 ; see also Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed.

2024See Scales, 518 N.W.2d at 592 (stating that “suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed ‘substantial’ ”).

2024Provider Google, Inc., 802 F.3d 516, 530 (3d Cir. 2015) (reprimanding prosecutors where they “include[d] a non-attorney federal agent at the first level of review, followed by review by independent attorney federal agents” because “first level of privilege review should be conducted by an independent . . . attorney”); see also Baltimore Law Firm, 942 F.3d at 177 (remanding for greater privilege protections where “the [privilege protocol] authorized paralegals and IRS and DEA agents to designate seized documents as nonprivileged”). 24 Law enforcement does not need a court’s permission to review

2018Cf. Panel File No. 41310 , 899 N.W.2d at 826 (concluding that breach of the attorney-client privilege, which is "fundamental to the attorney-client relationship," "undercuts the public's trust in attorneys").

2017Murdoch, 365 F.3d at 702 ; see, e.g., United States v. Rainone, 32 F.3d 1203, 1206-07 (7th Cir. 1994) (holding that when defense attorney extensively cross-examined a witness and elicited information that he had committed perjury and other crimes, notes written to his attorney were not necessary for effective cross-examination); Mills v. Singletary, 161 F.3d 1273, 1288-89 (11th Cir. 1998) (holding that, when court allowed witness to invoke attorney- client privilege regarding prior inconsistent statements made to defense investigator, no Confrontation Clause violation occurred when cross-exami

2017Murdoch, 365 F.3d at 702 ; see, e.g., United States v. Rainone, 32 F.3d 1203, 1206-07 (7th Cir. 1994) (holding that when defense attorney extensively cross-examined a witness and elicited information that he had committed perjury and other crimes, notes written to his attorney were not necessary for effective cross-examination); Mills v. Singletary, 161 F.3d 1273, 1288-89 (11th Cir. 1998) (holding that, when court allowed witness to invoke attorney- client privilege regarding prior inconsistent statements made to defense investigator, no Confrontation Clause violation occurred when cross-exami

2017Murdoch, 365 F.3d at 702 ; see, e.g., United States v. Rainone, 32 F.3d 1203, 1206-07 (7th Cir. 1994) (holding that when defense attorney extensively cross-examined a witness and elicited information that he had committed perjury and other crimes, notes written to his attorney were not necessary for effective cross-examination); Mills v. Singletary, 161 F.3d 1273, 1288-89 (11th Cir. 1998) (holding that, when court allowed witness to invoke attorney- client privilege regarding prior inconsistent statements made to defense investigator, no Confrontation Clause violation occurred when cross-exami

2017Federal caselaw has recognized that the attorney-client privilege must, if necessary, yield “to ensure the level of cross-examination demanded by the Sixth Amendment.” Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004); cf. State v. Evans, 756 N.W.2d 854, 872 (Minn. 2008) (acknowledging that privileges must give way to a defendant’s right to confrontation in narrow circumstances).

2017Federal caselaw has recognized that the attorney-client privilege must, if necessary, yield “to ensure the level of cross-examination demanded by the Sixth Amendment.” Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004); cf. State v. Evans, 756 N.W.2d 854, 872 (Minn. 2008) (acknowledging that privileges must give way to a defendant’s right to confrontation in narrow circumstances).

2017United States v. Ortega, 150 F.3d 937, 942 (8th Cir. 1998).