The POWER 30: Wil Fluegel

A case now before the Minnesota Supreme Court could put a serious crimp in such litigation, says appellate attorney Wil Fluegel, who has drafted an amicus curiae brief for the Minnesota Association of Justice.

In Energy Policy Advocates v. Ellison, the Court of Appeals said Minnesota does not recognize the common interest doctrine as an exception to attorney-client privilege. As the Court of Appeals stated, “The common-interest doctrine has been described as ‘an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to a third party, and it applies if the privilege-holder discloses privileged documents to a third party with which it shared a common interest.’” The parties must have a common legal interest and exchange information in pursuit of a common strategy.

In other words, lawyers working together on the Interstate 35W bridge collapse could share information, which they did. “I can’t imagine how we would do mass torts,” Fluegel said. It seemed to be taken for granted that that was the common law, although it is not a statute or rule. But he did find a 1940-era case that recognized the doctrine.

Not so, said the Court of Appeals, refusing to extend the doctrine. “As we have stated many times, ‘the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.’”

The year 2021-22 might be the year of attorney-client privilege, Fluegel said. In December 2021, in In Re Polaris, the court adopted the predominant purpose test to determine whether the privilege applies where a document is a mixture of business and legal advice.

Fluegel was appointed to the State Board of Law Examiners committee, formed for the purpose of conducting a comprehensive study of the bar exam, including alternatives for admission to the bar. It will study the existing bar exam, experiential and clinic-based criteria, and a supervised practice method for admission, Fluegel said. He is in the group studying the existing exam. Public hearings and meetings will be part of the review process and the Board will seek broad stakeholder participation, its website states.

Minnesota uses the Uniform Bar Examination, written by the National Conference of Bar Examiners. It has also performed a study and is planning a “Next Generation of the Bar Examination.”

There are several questions about the bar exam, Fluegel said. They include whether it is a good metric, whether it is properly written, whether its focus is ethnocentric and whether it should be the only pathway to the profession.  “There has to be more than memorization,” Fluegel said.