What limits do the constitutional guarantees of due process, effective
assistance of counsel, and freedom from unreasonable searches and seizures, impose on a search and seizure of an attorney’s files when the government accuses the attorney of criminality?

This is how the question was posed by lawyers representing “John Doe” clients of Minnesota criminal defense lawyer, Kristi McNeilly in a petition to the Minnesota Supreme Court for review of unfavorable decisions in the trial court and the intermediate court of appeals. (Over objection, the Minnesota Supreme Court has granted the petition for review of a denial of a petition of a writ of prohibition.)

Ms. McNeilly has, herself, been charged with theft by swindle. But does that mean that law enforcement officers should be free to search through all of her client matters?

“Requiring a judge or special master to assess seized materials for privilege is the appropriate means to safeguard privileges and constitutional rights without hindering legitimate law-enforcement interests,” counsel for the Doe intervenors argue to the Minnesota Supreme Court. Such a procedure increases cost and delay but how else is one to protect client files and communications that are unrelated to the alleged crimes in which Ms. McNeilly was supposedly involved?

Minnesota Litigators normally covers news and offers commentary about Minnesota civil litigation. The issue raised in “In re K.M.,” though it comes up in the criminal context, is important for all Minnesota lawyers. The government’s indiscriminate and unchecked scrutiny of privileged and confidential attorney-client relationships poses a threat to us all.

5 Comments on “Minnesota Supreme Court to Decide an Important Case for Criminal Defense Lawyers (And Others)

  1. V.K.

    When I try to look up this case on the Minnesota courts website, even using the case number from the complaint filed by the Hennepin County prosecutor, this case doesn’t come up. I mean just the charges in Hennepin, not McNeilly’s “In Re: K.M” case, which is turning into some kind of amicus feeding frenzy in the appellate court.

    It’s interesting as can be…I’m looking for new filings every day just to see how it’s going. But her case in Hennepin County district court is not appearing on the courts website.

    All of Ms. McNeilly’s many traffic violations–most of them parking tickets–those come up, that’s for sure. No wonder she needed to swindle a client to pay her credit cards and mortgage (allegedly) since she’s spending a fortune on parking tickets.

    But her criminal charge doesn’t come up. It sure looks like special treatment for a lawyer. A regular person charged with theft by swindle (aggravated circumstances) would see their court record online.

    The lack of an online district court record means that if somebody wanted to know the next thing happening in the case, like a hearing, or view the filings in the case (from a law library of if you have the paid access lawyers have) you can’t access this information.

    McNeilly is probably going down hard for these charges, plus clients are sure to be driven away because they hear about CONFIDENTIAL ATTORNEY/CLIENT RECORDS BEING IN THE HANDS OF THE POLICE INVESTIGATORS but in the meantime…this lawyer is still getting special treatment in the court system.

    And that’s not right at all.

    She’ll probably get special treatment in the prison system, too.

    Hey, I’m just going to sign off with my initials even though your website knows who I am from my email…like that crazy case called “In Re: K.M.”

    Reply
    1. Seth Leventhal

      Thanks for the comment. I am not sure I agree that lawyers get special treatment in the court system. But we certainly agree that public access to court records is grossly insufficient in Minnesota and no one seems to be held responsible for this failure. As pointed out in other posts, other states are way ahead of Minnesota and the obviously face the same concerns, the same balance of public access vs. privacy/confidentiality.

      Reply
  2. V.K.

    I wish I could go back and edit a typo in my comment…I meant to type “from a law library, or if you have the paid access lawyers have.” That is to say, lawyers pay to be able to view court filings remotely, but regular folks have to physically go to a law library or a computer terminal at a local courthouse to view the same filings.

    Imagine how much more accessible courts could be if all the records could be viewed remotely! I understand lawyers pay a fee to conveniently view court filings, and paying these fees or subscriptions helps fund the system, but oh! How much access and transparency is lost through such a system.

    Why not make online access to all the court filings free but support the system by having advertising? Admittedly, that’s a big change to the system…I would suggest implementing such a change bit by bit, experimenting and seeing how it goes. Start by hosting advertising and work out the bugs.

    But in regard to K.M. and “special treatment,” the following:

    While I would not ask you, sir, to “concede” to me that lawyers in general get special treatment in the court system, let us focus on the kind of treatment “K.M.” is actually getting in the court system.

    First and foremost…why isn’t her district court record available through the Minnesota court system? This failure is not like the common and constant widespread failures of the online Minnesota court system…the way it goes down constantly, the way you have to go back constantly, each time, and put the “CAPTCHA” into the system…but if you don’t, the system won’t tell you that you missed putting in the CAPTCHA, instead the system will tell you your search produced no results…any idea how much compounded confusion this ONE LITTLE GLITCH produces?

    But the failure to put K.M.’s court proceedings online is not due to a widespread systemic failure…instead it’s a very specific form of special treatment. If an ordinary person is charged with something as small as a speeding ticket, their ongoing procedural record appears online, updated constantly. Heck, I follow along online with the divorces and criminal charges of people that I know all the time.

    But not so with the charges against K.M. in the district court…and this despite the fact these charges were trumpeted by a PRESS RELEASE from the Hennepin County prosecutor! So if the charges are such a matter of public interest that merit a press release…then why is the ongoing district court record not available online?

    Time and time again I will circle back to this one point to show K.M. is getting special treatment. WHY. IS. HER. DISTRICT. COURT. RECORD. NOT. AVAILABLE. ONLINE?

    Also, how on earth is “K.M.” allowed to file appeal cases with just her initials? It’s not like she’s a minor or something! But if the police came to the house of an ordinary person and served a search warrant, and that ordinary person wanted to fight in court about the warrant, you can be sure their full name would be at the top of those filings!

    Deny it if you like, sir, but every ordinary person can see lawyers receive special treatment in the courts system, from the very moment lawyers are waived past the metal detector and ordinary people have to take the off belt of their pants, sometimes take off their shoes, toss EVERYTHING in the plastic tray.

    But who is more likely to flip out in a courthouse…some random guy off the street or this “K.M.” based upon what we read of her? One thing your story didn’t cover–I’m not saying you “missed” it, sir, I would not ask you to “concede” such a thing–but I believe the colorful prior disciplinary case involving this lawyer is highly relevant, too.

    https://www.twincities.com/2009/11/29/witness-tampering-charges-dropped-against-woodbury-attorney/

    http://www.startribune.com/attorney-in-domestic-assault-case-is-accused-of-witness-tampering/50414422/

    file:///C:/Users/setup/Downloads/Order%20-%20Discipline%20(disposition).pdf

    In conclusion…

    WHY IS HER DISTRICT COURT RECORD NOT AVAILABLE ONLINE?

    Reply
    1. Seth Leventhal

      You are mistaken when you write that Minnesota lawyers have “paid access” to on-line state court filings. Remote public access to Minnesota state court records is as impossible for lawyers as it is for everyone else. Hopefully, not for long, although the court system cannot seem to figure it out. They are still trying. See http://bit.ly/2LnvNeh.

      (Lawyers and the public have remote access to federal court dockets through PACER. http://bit.ly/2lwIgRe )

      Reply

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