minnesota attorney client privilege which state's law aplies

Swadner, the Minnesota Supreme Court clearly distinguished the privilege applicable to an attorney’s work product under Minnesota Rules of Civil Procedure from the statutory attorney-client privilege. The scope of the work product doctrine is considerably broader than the attorney-client privilege and affords less protection.

Full Answer

Is an attorney’s work product privileged under Minnesota Rules of Civil Procedure?

In this rule: (1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and. (2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. (Added effective January 1, 2019.)

Is attorney-client privilege applicable to attorney work product?

University of Minnesota, the Minnesota Supreme Court considered whether the attorney-client privilege may attach to preliminary drafts of a document, exchanged between a client and lawyer, when the final version is published to a third party. Pursuant to the Minnesota Government Data Practices Act, an assistant professor at the university sought to obtain two earlier drafts of a …

When is information not protected by the attorney-client privilege?

(b) A lawyer may reveal information relating to the representation of a client if: (1) the client gives informed consent; (2) the information is not protected by the attorney-client privilege under applicable law, the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client;

Can a Minnesota Court recognize new privileges to serve public policy?

exception to the general rule that the attorney-client privilege is waived if a privileged communication is disclosed to a third party, the common-interest doctrine does not apply pursuant to section 13.393 of the Minnesota Statutes to data possessed by an attorney acting

What type of rule or law governs the attorney-client privilege?

In the federal courts, protections for attorney-client communications are embodied in part in Federal Rule of Civil Procedure 26, Federal Rule of Criminal Procedure 16 and Federal Rules of Evidence 501 and 502. Federal Rule of Civil Procedure 26 governs attorney-client privilege in the context of civil discovery.Apr 12, 2019

Does attorney-client privilege survive death in Minnesota?

The privilege also prevents a client from being required to disclose information discussed in confidence with his or her attorney. ... In a more recent case, the United States Supreme Court held that the attorney-client privilege survives the death of the client.

Does attorney-client privilege apply to the client?

The privilege covers written and oral communications and protects both individual and institutional clients. ... The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential.

What is the lawyer-client privilege and when does it apply?

Generally, the attorney-client privilege applies when: an actual or potential client communicates with a lawyer regarding legal advice. the lawyer is acting in a professional capacity (rather than, for example, as a friend), and. the client intended the communications to be private and acted accordingly.

What happens if privileged information is voluntarily disclosed to a third party?

The attorney-client privilege protects confidential communications between an attorney and a client for the purpose of obtaining legal advice or services. ... Voluntary disclosure of privileged communications to a third party results in waiver of the attorney-client privilege unless an exception applies.

Can a wife testify against her husband in MN?

Minnesota is recognized as one of the states that strictly enforces two distinct spousal privileges: the privilege to prevent a spouse from testifying at any time concerning confidential inter-spousal communications made during the marriage; and the privilege to prevent a spouse from testifying against the other during ...

Does attorney-client privilege apply to non clients?

The lawyer-client privilege does not only prevent disclosure of confidential communications by you or your attorney. ... “You can assert the lawyer-client privilege against anyone who is privy to confidential communications with your attorney—even if that person was not a party to the attorney-client relationship.

Who does the attorney-client privilege belong to?

Because the attorney-client privilege belongs to the client, the client's intent determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn't participate in, the actual crime or fraud.

Which of the following may not be protected under the attorney-client privilege?

Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime. Correct!

What is the difference between confidentiality and attorney-client privilege?

Attorney-client privilege protects lawyers from being compelled to disclose your information to others. ... Confidentiality rules provide that attorneys are prohibited from disclosing any information for privacy reasons, unless it is generally known to others.Jan 6, 2017

What is the difference between attorney-client privilege and work product?

According to the Cornell Law School Legal Information Institute, the “attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.” On the other hand, the Cornell Law School Legal Information Institute proclaims “the work product ...Mar 17, 2020

Who can assert attorney-client privilege?

2d 330, 334 (1993). The privilege is held by the client, who has the sole authority to waive the privilege. Nonetheless, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client. There are few exceptions to the privilege.

Which Privilege Law?

To determine the privilege issues, the court had to decide whether NY or SC law applied to the putatively privileged communications.

First Restatement Approach?

The court noted that SC traditionally follows the choice-of-law rules of the first Restatement of Conflict of Law, but that the First Restatement did not address the issue in the case. The First Restatement, rather, divides matters into procedural and substantive, with the forum state’s law applying to procedural issues.

Second Restatement Approach?

In § 139, the Second Restatement advocates first determining which state has the “most significant relationship” with the putatively privileged communication, and then applies a decisional framework to decide whether the privilege law of the forum state or the state with the most significant relationship governs.

How do Courts Apply the Second Restatement Approach?

Under § 139, courts look to state where the communication occurred to determine which state has the most significant relationship to the communication.

POP Analysis

Two issues are worth some additional discussion. First, SC is like many states—no court has issued an opinion on the appropriate conflict-of-privilege-law analysis. There is a dearth of case law on this important issue, but parties and their lawyers have little guidance.

Is corporate counsel privileged?

Unlike Newman, most courts that have addressed this issue have held that communications between corporate counsel and former employees can be privileged, as long as the balancing test set forth in Upjohn and similar cases calls weighs in favor of maintaining the privilege. The reasoning behind this conclusion is outlined in Peralta v. Cendant Corp ., 190 F.R.D. 38 (D. Conn. 1999), which many federal courts have followed. Peralta contains its own flexible test—namely, does the communication in question relate to the former employee’s conduct, knowledge, or communication with corporate counsel while he or she was still employed? If so, the communication is protected under Upjohn.

What was the Newman case?

Newman was a personal injury action brought by a student athlete against his former school district. The student claimed to have suffered permanent brain injuries while playing high school football, and his lawyers sought to discover communications between the district’s attorneys and the student’s former coaches. Although several of the coaches were no longer district employees, the district claimed these communications were privileged. The trial court disagreed and denied the district’s request for a protective order shielding the communications from discovery. The Washington Supreme Court granted discretionary review.

Which Privilege Law?

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First Restatement Approach?

Second Restatement Approach?

How Do Courts Apply The Second Restatement Approach?

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