Skip to content
  • CAREERS
  • CONTACT US
Search
Close
anthony ostlund logo
  • PEOPLE
  • LITIGATION
    • APPEALS
    • COMPLEX COMMERCIAL LITIGATION
    • EMPLOYMENT LITIGATION
    • FRAUD AND FIDUCIARY DUTY
    • FINANCIAL LITIGATION
    • OWNER/SHAREHOLDER DISPUTES
    • PLAINTIFF CONTINGENCY CASES
    • PROFESSIONAL MALPRACTICE
    • REAL ESTATE LITIGATION
    • TRUSTS AND ESTATES LAW
  • SUCCESSES
  • NEWS
  • ABOUT
  • FEE ARRANGEMENTS
Menu
  • PEOPLE
  • LITIGATION
    • APPEALS
    • COMPLEX COMMERCIAL LITIGATION
    • EMPLOYMENT LITIGATION
    • FRAUD AND FIDUCIARY DUTY
    • FINANCIAL LITIGATION
    • OWNER/SHAREHOLDER DISPUTES
    • PLAINTIFF CONTINGENCY CASES
    • PROFESSIONAL MALPRACTICE
    • REAL ESTATE LITIGATION
    • TRUSTS AND ESTATES LAW
  • SUCCESSES
  • NEWS
  • ABOUT
  • FEE ARRANGEMENTS

In re Polaris, Inc. – Predominantly Clear or Unclear?

  • January 24, 2022

Minnesota Lawyer and Finance & Commerce – Partner Content

Author: William Paterson

 

There is officially now another wrinkle to the attorney-client privilege doctrine under Minnesota law.  The Minnesota Supreme Court recently issued decision in In re Polaris, Inc.  2021 WL 5913633 (Minn. Dec. 15, 2021) and in doing so both provided clarity and uncertainty to the privilege doctrine.  In short, the Court was deciding whether the attorney-client privilege protected an audit report in its entirety from disclosure.  The Court held that the report was not protected in its entirety because although the report did include legal advice, the predominant purpose of the report was to provide business advice rather than legal advice.  The headline takeaway, and one certainty, from the Court’s decision may therefore be that Minnesota has officially adopted the predominant purpose test—i.e. if the predominant purpose of a lawyer’s advice to its client is legal advice, compared to business advice, then the advice (e.g. document) is protected from disclosure.  While itself a monumental decision, especially for business litigators, it will be interesting to see (and currently almost impossible to predict) how this decision will be applied moving forward.  For lower courts, there are at least two uncertainties that come to mind.

 

The first uncertainty is highlighted by Justice Anderson in his dissent – what is the distinction between business advice and legal advice?  Although the Court clearly adopted the predominant purpose test, the Court failed to “meaningfully articulate what ‘business advice’ and ‘legal advice’ mean.”  Id. at *12.  To state the obvious, analyzing whether a lawyer’s advice to a client is predominantly legal advice versus business advice is impracticable without first establishing what constitutes, as a legal matter, legal advice versus business advice.  Justice Anderson, for the benefit of courts, clients, and attorneys, took the laboring oar in articulating the difference between business advice and legal advice.  But as Justice Anderson acknowledged, his analysis only provided “some contours to the concepts of business and legal advice.”  Id. at *14 (emphasis in original).  If lower courts are unclear or disagree as to what constitutes legal advice versus business advice, then the very foundation of this now official legal doctrine is uncertain.

 

The second uncertainty is maybe more subtle but may also carry more weight moving forward – what if the special master (and subsequently district court) had decided the other way?  Before analyzing whether the primary purpose of the audit report was to provide legal advice and was therefore protected by the attorney-client privilege, the Court reiterated that whether the privilege exists is a question of fact.  More specifically, the Court held that “determining the predominant purpose of a document is a question of fact.” Id. at *7.  Because the issue is a question of fact, the Court then emphasized the standard of review to apply—clear error.  In applying this standard, the Court was merely tasked with determining whether it had a definite and firm conviction that a mistake at the district court level had been made.  Stated differently, if the district court’s decision regarding the predominant purpose of the audit report was reasonably supported, then the Court had to affirm.  It did just that.  Id. at *9 (“In sum, we are not left with a definite and firm conviction that the special master erred in finding that Polaris did not establish that the predominant purpose of the audit report was legal advice.”).  So, while providing certain legal precedent, this decision may not provide as much guidance as originally expected.  Whether the predominant purpose of the specific advice in a future case was legal or business advice is still a question of fact that must be analyzed independently.  Had the special master found that the primary purpose of the audit report was to provide legal advice; would the Supreme Court still have affirmed?  What would it take to have a definite and firm conviction that the lower court had decided the predominant purpose issue in error?  The answer is unclear.  All we know is that as we saw here, how the district court rules and thus how an appellate court must review that decision is very important.

 

Minnesota has now officially adopted the predominant purpose test.  But as we can see, in settling one legal issue, the Minnesota Supreme Court may have created plenty more.  It will be important for business litigators to consider both these certainties and uncertainties when addressing privilege issues moving forward.

related attorneys

Loading...

William R. Paterson

related practice areas

Loading...

Complex Commercial Litigation

AO-logo-initials

90 SOUTH 7TH STREET, SUITE 3600
MINNEAPOLIS, MN 55402
P 612.349.6969       F 612.349.6996

 

© 2021 ANTHONY OSTLUND LOUWAGIE DRESSEN BOYLAN P.A.
ALL RIGHTS RESERVED.

  • 651•312•6500
  • 651•312•6618
  • People
  • Litigation
  • Successes
  • News
  • About
  • Fee Arrangements
  • Careers
  • Contact
  • People
  • Litigation
  • Successes
  • News
  • About
  • Fee Arrangements
  • Careers
  • Contact
  • PEOPLE
  • LITIGATION
    • APPEALS
    • COMPLEX COMMERCIAL LITIGATION
    • EMPLOYMENT LITIGATION
    • FRAUD AND FIDUCIARY DUTY
    • FINANCIAL LITIGATION
    • OWNER/SHAREHOLDER DISPUTES
    • PLAINTIFF CONTINGENCY CASES
    • PROFESSIONAL MALPRACTICE
    • REAL ESTATE LITIGATION
    • TRUSTS AND ESTATES LAW
  • SUCCESSES
  • NEWS
  • ABOUT
  • FEE ARRANGEMENTS
  • PEOPLE
  • LITIGATION
    • APPEALS
    • COMPLEX COMMERCIAL LITIGATION
    • EMPLOYMENT LITIGATION
    • FRAUD AND FIDUCIARY DUTY
    • FINANCIAL LITIGATION
    • OWNER/SHAREHOLDER DISPUTES
    • PLAINTIFF CONTINGENCY CASES
    • PROFESSIONAL MALPRACTICE
    • REAL ESTATE LITIGATION
    • TRUSTS AND ESTATES LAW
  • SUCCESSES
  • NEWS
  • ABOUT
  • FEE ARRANGEMENTS
search
disclaimer
Linkedin
Join Our Email List

© 2021 ANTHONY OSTLUND LOUWAGIE DRESSEN BOYLAN P.A. ALL RIGHTS RESERVED.

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. Cookie settingsACCEPT
Privacy & Cookies Policy

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Non-necessary
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
SAVE & ACCEPT