In a case of high importance to state attorneys general and other government agencies, the Minnesota Supreme Court last month issued its decision in Energy Policy Advocates. v. Ellison, recognizing the “common interest” doctrine and confirming application of attorney-client privilege within government agencies. –N.W.2d —-, 2022 WL 4488489 (Minn. Sept. 28, 2022). The decision adds to the growing consensus in state and federal courts recognizing confidentiality for attorneys who need to share privileged or protected information. It also removes any doubt that state attorneys general can share such information with the Minnesota Attorney General without risking waiver of privilege and work-product protections, if the conditions set forth in the decision are met.
As members of NAAG understand, it is essential for lawyers and legal staff that work for state attorneys general to be able to confidentially communicate and share information in certain circumstances to adequately represent and advocate for the legal interests of their respective states. Threats to public health and safety may require legal coordination between state, federal, local, and tribal governments. Civil enforcers frequently encounter unlawful business practices that affect multiple states and require coordinated legal strategies. Criminal prosecutors at different levels of government or different agencies may need to share information to ensure that illegal conduct is effectively investigated and that a comprehensive enforcement strategy is applied. These are just some of the many examples where attorneys general must share sensitive information and legal strategies that may be protected as attorney-client privileged, work product, or subject to other investigatory and legal privileges and protections.
Because of these interests, and the interests of all public and private attorneys that represent different parties that may face shared legal challenges, courts have increasingly recognized a “common interest” doctrine that preserves the confidentiality of communications among parties with shared interests. Notably, the doctrine is not a new or stand-alone privilege. Rather, it is a line of case law (and some statutes) that apply traditional privilege and waiver principles to recognize an exception to waiver when confidential information is exchanged between parties with a common interest who are represented by different counsel. Courts in federal and state jurisdictions across the United States have recognized the doctrine, and no jurisdiction that has considered the doctrine has rejected it.
Questions over applicability of the doctrine in Minnesota, however, arose in the Energy Policy Advocates matter. Disputes over the common-interest doctrine typically arise in litigation during discovery, but this case concerned a request for state government data under Minnesota’s analog to the federal Freedom of Information Act. Specifically, an advocacy organization sought documents from the Minnesota Attorney General’s Office that touched on various legal matters concerning the environment and climate change. This included communications with other state attorneys general concerning potential litigation as parties and as amicus curiae.
Lower Court Decisions
When the Energy Policy matter was first addressed at the district court level, the parties agreed on the universe of documents at issue and agreed to have them reviewed by the court via summary judgment proceedings. The district court then reviewed the documents, determined that the requested data contained privileged and work-product communications of attorneys in the Minnesota Attorney General’s Office, and held that the common-interest doctrine protected those communications from being subject to waiver. On appeal, however, the Minnesota Court of Appeals held that lower courts could not apply the doctrine because it had not yet been formally recognized by the Minnesota Supreme Court or in Minnesota statutes. As a result, the appellate panel held that the Minnesota Attorney General could not rely on the doctrine to maintain attorney-client privilege or work-product protection over documents shared with other agencies or state attorneys general.
The Minnesota Supreme Court accepted review and received a large number of amicus briefs from an array of interests and parties that advocated for reversal. Among amicus participants, the Attorney General for the District of Columbia filed a brief on behalf of the District and a bipartisan coalition of 38 states supporting the need for recognition and application of the common-interest doctrine for attorneys general. Minnesota’s state agencies filed a separate brief supporting the need for the doctrine to ensure efficient and adequate inter-governmental coordination. Also, in a rare and unlikely alliance, Minnesota’s criminal prosecutors and defense attorneys joined to support recognition of the doctrine to allow them to effectively represent their clients.
The Minnesota Supreme Court issued its decision in September 2022, reversing and formally recognizing the common-interest doctrine under Minnesota law. The court started its analysis by noting that “neither party seriously disputes that Minnesota should recognize the doctrine.” It then proceeded to agree with the consensus from “numerous other states” and “nearly every federal circuit court of appeals” that had adopted it. However, the court noted that “the precise contours of the doctrine varied by jurisdiction,” necessitating clarification of the elements as applied in Minnesota.
Minnesota’s Common-Interest Doctrine
Having surveyed the case law, the Minnesota Supreme Court held that the common-interest doctrine could apply and prevent waiver of privilege when:
(1) two or more parties,
(2) represented by separate lawyers,
(3) have a common legal interest,
(4) in a litigated or non-litigated matter,
(5) the parties agree to exchange information concerning the matter, and
(6) they make an otherwise privileged communication in furtherance of formulating a joint legal strategy.
The court noted that these elements were “generally consistent” with the formulation in sections 76 and 91 of the Restatement (Third) of the Law Governing Lawyers as well as most federal courts.
The court also clarified other applications related to the doctrine. First, “the party asserting the protection of the common-interest doctrine has the burden of proving its application.” Second, the doctrine applies to the sharing of attorney work product, as well as attorney-client privileged matters. Third, the doctrine only applies when parties share a common “legal” interest; so, parties that share a “purely commercial, political, or policy interest” will not be able to exchange privileged and work-product information without risking waiver. Finally, the court rejected adoption of a heightened standard for invoking the doctrine for public attorneys.
Attorney-Client Privilege for Public Lawyers
The court also reversed another aspect of the Court of Appeals’ decision that would have prevented application of attorney-client privilege to communications within a public law office like the Minnesota Attorney General’s Office. The plaintiff had challenged the invocation of attorney-client privilege for documents the Minnesota Attorney General described as containing “internal communications,” and the Court of Appeals held that “[a] communication between or among two or more attorneys in a law office, by itself, cannot satisfy the requirements” of the attorney-client privilege “in the absence of a communication between one of the attorneys and a client.” In reversing, the Minnesota Supreme Court made clear that attorney-client privilege “indisputably extends to public law offices.” And while the court did not address whether privilege attached to any specific communications, it “reject[ed] [any] categorical rule that the attorney-client privilege may never apply to internal communications within the Office of the Attorney General.”
Legal practitioners of all stripes should take note of the Minnesota Supreme Court’s ruling, particularly if they practice or may end up in Minnesota court. Lawyers that practice in other jurisdictions, however, should also consider whether other parties with whom they communicate are located in Minnesota. When they communicate with those parties’ attorneys, Minnesota’s conception of the common-interest doctrine may become relevant. And more generally, all practitioners should understand the decision in the context of the growing legal consensus around the common-interest doctrine and consider how it may affect arguments that arise in other jurisdictions where it is not yet formally recognized.
For state attorneys general specifically, the immediate impact of the decision is that common-interest communications to which the Minnesota Attorney General’s Office is a party will be subject to the protection of the common-interest doctrine detailed in the decision. That means that communications in which the Minnesota Attorney General’s Office shares a legal interest are subject to attorney-client and work-product protection without fear of waiver. Another essential element in the Minnesota Supreme Court’s framework is an agreement to exchange information in pursuance of the common legal interest. The court’s opinion makes clear that such agreements need not be in writing. Notably, however, communications exchanged in pursuance of purely policy or political interests will not be protected.
State attorneys general should also take heed of the Minnesota Supreme Court’s recognition that attorney-client-privileged communications can occur among staff members of state attorneys general. The Minnesota Attorney General explained in his brief how state attorneys general serve the public and may need to internally provide legal advice to the Attorney General, managers and deputies, or other legal decisionmakers within the Office:
Public agencies … stand in a unique position of often being both the client and attorney when representing the public. … So, for example, when the [Minnesota Attorney General’s Office] litigates an action to remediate consumer fraud, abate a public nuisance, or prevent abuse by a registered charity, the Attorney General must consult and obtain legal counsel from his deputies, assistants, and other legal staff. Those officials in turn must also frequently make lower-level decisions on behalf of the State in which they must consult attorneys within the Office. In these situations, both the client and its legal counsel are attorneys in the same office.
While the Supreme Court’s decision did not define when attorney-client privilege may attach to these specific types of communications, it rejected the idea that an outside “client” was necessary for the privilege to attach. The decision thus may provide guidance to other state attorneys general who face the need to define the privilege in their internal communications.
Overall, while the Energy Policy Advocates case is important for all legal practitioners, it represents a direct and specific example of authority to guide public lawyers. The legal and policy arguments made by the Minnesota Attorney General, amicus state attorneys general, prosecutors, and state agencies addressed the unique need for confidential coordination in areas of law enforcement, protection of public health and safety, and other government matters. The Minnesota Supreme Court’s recognition and analysis of the common-interest doctrine within the context of these interests should provide helpful guidance to state attorneys general that continue to face such challenges in the future and in other jurisdictions.
 Edna Selan Epstein, Attorney-Client Privilege & Work Product Doctrine 346-97 (6th ed.); Katharine Traylor Schaffzin, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49, 65 (2005).
Other articles in this edition include:
- Consumer Chief of the Month
- Federal Consumer Protection News: October 2022
- Attorney General Consumer Protection News: October 2022