Originally from:
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Hardcover
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Electronic
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CHAPTER 78
DUTIES OF LEGAL COUNSEL
AT THE COMMENCEMENT OR DURING
THE PROSECUTION OF LITIGATION
Section
§ 78.01 Attorney-Client Privilege
§ 78.02 Minnesota Rules of Professional Conduct, Rule 1.13
§ 78.03 Derivative Litigation
§ 78.04 Shareholder Disputes
§ 78.05 Parent-Subsidiary Disputes
§ 78.06 Former Shareholders,’ Officers,’ and Directors’ Suits against the
Corporation
§ 78.01 Attorney-Client Privilege
The general duties of the corporate counsel at the time of litigation do
not differ from those duties owed the noncorporate client. However, the
presence of shareholders, former officers and directors, and current
officers and directors create potential problems and special
responsibilities for the corporate counselor.
Generally, communications between an attorney and his or her client
are neither discoverable nor admissible as evidence under the attorneyclient
privilege. The objective behind this privilege is to foster and
enhance free and open communication between counsel and client. The
privilege also extends to an attorney’s corporate client.1
There is an issue, though, as to whom within the corporation this
privilege extends. Whether particular communication(s) from a corporate
employee to the corporation’s attorney is privileged depends on its
subject matter. To be privileged the communication must be a
confidential communication by a corporate employee to an attorney at
the direction of superiors on matters within the scope of employment for
the purpose of obtaining legal advice.2 This privilege, however, may be
waived by fraud or disclosure by the client.
It must be remembered that it is the duty of the attorney, not the
client, to determine whether there are any conflicts of interest present
which may affect his or her representation.3
Roger J. Magnuson is a Partner at Dorsey and Whitney, LLP, where he serves as Head of the National Strategic Litigation Group and has practiced since 1973. He has been recognized as one of the top trial lawyers in the United States by major national and international publications, including Chambers International Guide to American Lawyers, which profiles the top 500 trial lawyers in the United States, Best Lawyers in America, Who's Who in American Law, and Who's Who in America. Mr. Magnuson was also recognized by a Journal of Law and Politics' survey for Judge's Choice "Wins Most Cases."
Some high profile cases that he has litigated include representation of the Florida Senate in the Bush v. Gore election controversy in 2000; and representation of the Plaintiffs in the widely publicized and studied Mall of America case. For several years he has represented, among other persons and entities, the Minnesota Twins and Major League Baseball principals and players in litigation; and has litigated national and local cases in federal and state court venues. He has appealed before the Supreme Court in a number of cases; as well as the Minnesota Supreme Court. He has authored several articles and 7 books.
Richard A. Saliterman is a Principal in Saliternan & Siefferman P.C., a full-service firm in Minneapolis established in 1976. Mr. Saliterman is a leading expert on corporate business matters, and is the author of several publications on business start-ups, franchises, and trademarks. Mr. Saliterman is the former National Judge Advocate for the U.S. Navy League, based in Washington D.C.
Contributing Editor:
Amanda Chang
Contributing Authors:
Alecia Anderson
Seth Back
John Baker
Shannon Berg
Constatin Burachek
Benjamin Carpenter
Ryan Check
Carl Christensen
Peter Fear
Michael Frasier
Aaron Hall
Catherine Hanson
Paul Harman
Amy Ithlan
Michael Kern
Chris Kuhlman
Brett Larson
Joshua Lederman
Karen Lundquist
James Magnuson
Jennifer Mead
Rao Menier
Heidi Miller
Rachael Moxon
Oliver Nelson
Scott Peitzer
Mitchell Skinner
Jonathan Stechmann
Lael Weinberger
Jonathan Wilson
Alex Zumbulyadis
