We’ve heard your complaints, “Wiley Reber, why don’t you talk more about things that really only affect attorneys, more specifically, public attorneys?”  Well, your prayers have been answered because we’re doing one just for the attorneys today!

Yesterday, the Minnesota Supreme Court issued a very important decision having to do with public attorney representation of its public entity clients, and communications between attorneys working for the same jurisdiction in Energy Policy Advocates v. Keith Ellison, in his official capacity as Attorney General, Office of the Attorney General.

The case arose when the plaintiffs made data requests to the Attorney General’s (“AG’s”) office, seeking documents related to climate-change litigation.  When the office responded that no “responsive, nonprivileged data” existed related to the request, it brought a civil action against the AG seeking production of the documents.  The district court denied the plaintiff’s requests, and dismissed the complaint.

At the Minnesota Court of Appeals, the court reversed the district court’s decision, in part, stating that the common-interest doctrine did not apply to the matter because the doctrine has never been recognized in Minnesota.  It also found that the district court erred by ruling that documents are protected by attorney-client privilege without any proof the documents were actually shared with clients.  The court of appeals also ruled that the documents did not contain private data on individuals when it had no proof the documents contained data on individuals.

We’ll focus our attention on the first two issues for this blog, as the data issue is limited to data from the AG’s office.

Regarding the common-interest doctrine, it permits parties with the same legal interests to share documents without losing the protection of the attorney-client privilege or work-product doctrine (the things that keep the information you share with your attorneys and your legal strategy private).  The AG invoked the common-interest doctrine to withhold documents under the Government Data Practices Act.  While the court of appeals recognized the common-interest doctrine didn’t exist in Minnesota, the Minnesota Supreme Court formally recognized the doctrine, based on neither party “seriously” disputing that Minnesota should recognize the doctrine, and the fact that many other states adopted that doctrine.

From this point forward, the common-interest doctrine applies when: Two or more parties represented by separate lawyers have a common legal interest in a litigated or non-litigated matter, the parties agree to exchange information concerning the matter and they make an otherwise privileged communication in furtherance of formulating a joint legal strategy.  This only applies when parties have common legal interests, and extends to attorney work product.

Regarding the attorney-client privilege within public law agencies, the Court held that the “attorney-client privilege indisputably extends to public law offices,” and no exception exists for requests made under the Minnesota Government Data Practices Act.  The Court stated that just because the AG’s office often “conducts litigation in which no discrete ‘client’ is readily ascertainable” the privilege was not abrogated, and communications between co-counsels remained protected.

While this decision doesn’t impact most of our readers directly, it is incredibly important for those who work with in-house attorneys on a regular basis.  Human Resources and Labor Relations professionals are frequently working with their attorneys on legal strategy, and it is important that the communications between one lawyer, or a whole team of attorneys, stays confidential.

Speaking of teams of attorneys, contact Wiley Reber Law for all of your employment and labor law needs, because we’re awesome.

Also, special shout-out to Minneapolis Airports Commission Labor Relations Manager Greg Failor, who is retiring today.  You will be missed, Greg!