• July 8, 2019

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.

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