Home | Private v. Public Lawyers - Apples to Oranges?
Private v. Public Lawyers - Apples to Oranges?
PRIVATE V. PUBLIC LAWYERS - APPLES TO ORANGES?
The lawyers in the Attorney General’s Office have different responsibilities than a private lawyer. A private lawyer is charged with zealously representing the interests of her particular client. Public lawyers, however, are responsible to represent the public and safeguard the public interest and the constitution. As a result, public and private lawyers have different responsibilities and obligations.
This article discusses some of the different duties and responsibilities of the two types of lawyers.
Authority to Investigate.
A private party usually lacks authority to compel witnesses to provide information before a lawsuit is filed. Private parties must decide whether to file a lawsuit based on information they can obtain through their own efforts or through the voluntary cooperation of others. In some cases, lack of information can sometimes stymie a private party’s ability to move forward with a lawsuit.
While a party may petition a state court for approval to take a deposition before a lawsuit is filed, this may only be done to “perpetuate testimony.” Minn. R. Civ. P. 27.01. The Minnesota Supreme Court has held that a party may request permission to take a pre-lawsuit deposition to preserve the testimony of a witness (e.g., due to a person’s age, infirmity, or unavailability)—but that a party may not obtain permission to take a pre-lawsuit deposition to investigate the merits of a potential claim. Sandmann v. Petron, 404 N.W.2d 800, 802 (Minn. 1987) (rejecting party’s petition to take deposition to determine if medical malpractice occurred); see also Application of Sitter, 167 F.R.D. 80 (D. Minn. 1996) (same).
By contrast, members of the Attorney General’s Office have broad authority to engage in pre-litigation fact-finding when investigating “unlawful practices in business, commerce, or trade.” Minn. Stat. § 8.31, subd. 1. The Attorney General’s Office may compel the pre-litigation discovery of information if it has “information providing a reasonable ground to believe that any person has violated, or is about to violate,” a law relating to “unfair, discriminatory, and other unlawful business practices.” Id., subd. 2. The Minnesota Supreme Court has held that this simply means that “on the basis of information the Attorney General already has, that it is reasonable for the investigation to continue.” Kohn v. State, 336 N.W.2d 292 (Minn. 1983).
The Attorney General’s authority is derived both from the statutes and the common law. State ex rel. Hatch v. Am. Family Mut. Ins. Co., 609 N.W.2d 1, 3 (Minn. Ct. App. 2000) (“the attorney general has broad common law and statutory authority to bring suits to protect the interests of Minnesota citizens,” including against insurance companies); State v. Ri-Mel, Inc., 417 N.W.2d 102, 110-112 (Minn. Ct. App. 1987) (recognizing broad parens patriae authority of attorney general).
The Attorney General’s Office has authority to bring lawsuits in the name of the State of Minnesota to recover restitution for Minnesota consumers injured by a pattern and practice of fraudulent conduct. State ex rel. Swanson v. Am. Family Prepaid Legal Corp., 2012 WL 2505843, at *4 (Minn. Ct. App. July 2, 2012) (upholding judgment in excess of $7 million against outfit that sold living trusts to senior citizens as a guise for selling annuities); State v. Minnesota Sch. of Bus., Inc., 935 N.W.2d 124, 133 (Minn. 2019) (upholding post-trial restitution process against for-profit college for misleading students into believing schools’ criminal justice programs would qualify them to become police and probation officers).
Authority to Control Litigation.
Private attorneys have authority to make some decisions on behalf of their clients, but they generally take their cues from their clients. By contrast, state lawyers have much broader authority to make decisions in the public interest, even when providing legal services to a state agency or official.
These differences are recognized in the preamble to the Minnesota Rules of Professional Conduct, which states that:
Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple clients….
Minn. R. Prof. Conduct Preamble ¶ 18.
For example, in the 1980s the Attorney General’s Office filed a lawsuit against the former executive director of a public employee retirement fund seeking to recoup improper personal payments for fishing trips and other things. The former employee sought to dismiss the lawsuit on the basis that the retirement fund had not authorized the lawsuit. The Minnesota Supreme Court determined that the attorney general had authority to bring the lawsuit on behalf of the retirement fund, writing that:
As the chief law officer of the state, the attorney general possesses all of the powers inherent in that office at common law. The attorney general may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of this state, the preservation of order, and the protection of public rights.
State v. McLaren, 402 N.W.2d 535, 539 (Minn. 1987). See also State ex rel. Peterson v. City of Fraser, 254 N.W. 776 (Minn. 1934) (describing Attorney General’s authority in legal matters as “plenary” and “beyond the control of any other office or department of the state”).
This authority is also codified in the statutes that specify the powers of the attorney general: “The attorney general shall appear for the state in all causes in the supreme and federal courts wherein the state is directly interested; also in all civil causes of like nature in all other courts of the state whenever, in the attorney general's opinion, the interests of the state require it.” Minn. Stat. § 8.01.
This authority can make the lawyer representing a state agency much more of a “player” in deciding whether a case is sued out, settled, or appealed, and how it is litigated, than a private attorney representing a private client. People negotiating with or litigating cases against the State should keep these differences in mind.
Constitutional Challenges.
The Attorney General’s Office is also responsible to defend the constitutionality of state statutes. Parties sometimes challenge the constitutionality of a statute in enforcement proceedings by the attorney general’s office, forcing the office to both prosecute the main action and defend the ancillary attack on the legitimacy of the statute.
For example, in 2011 the Minnesota Attorney General’s Office filed a lawsuit against a lender that made short-term, high-interest payday loans over the Internet. The lender argued that because it signed the loans in Delaware, the application of Minnesota law to its loans violated the Commerce Clause of the United State Constitution. An attempt by the State to shut down the lender and obtain money back for harmed consumers resulted in a detour to the Minnesota Supreme Court, which determined that the state lending law did not violate the Commerce Clause. State ex rel. Swanson v. Integrity Advance, LLC, 870 N.W.2d 90, 96-97 (Minn. 2015) (upholding $7.76 million judgment against online lender).
The law firm of Swanson Hatch, P.A. represents businesses and individuals in complex civil litigation, regulatory and professional/business licensing matters, and other matters involving state law. Former Minnesota Attorneys General Lori Swanson and Mike Hatch have overseen thousands of lawsuits brought by and against the State of Minnesota. Prior to her twelve years as Minnesota Attorney General, Lori Swanson previously served as Solicitor General and Deputy Attorney General of the State of Minnesota and chaired the Federal Reserve Board’s Consumer Advisory Council in Washington, D.C. Before he became Attorney General, Mike Hatch previously served as Commissioner of the Minnesota Department of Commerce for eight years. Lori Swanson can be reached at lswanson@swansonhatch.com, or at 612-315-3037. Mike Hatch can be reached at mhatch@swansonhatch.com, or at 612-315-3037. The firm’s website is www.swansonhatch.com.
Communications with Represented Parties.
Lawyers are generally prohibited from communicating about “the substance of the representation” with a person the lawyer knows is represented by another lawyer (1) without the permission of the other lawyer, (2) unless authorized by court order, or (3) unless authorized “by law.” Minn. R. Prof. Conduct 4.2.
The “authorized by law” exemption in some cases allows the government to communicate with represented parties in ways that would be prohibited by private lawyers.
For example, “communications authorized by law may…include investigative activities of lawyers representing government entities, directly or through investigative agents,” prior to the commencement of enforcement proceedings. Minn. R. Prof. Conduct 4.2, comment 5. But see State v. Miller, 600 N.W.2d 457 (Minn. 1999) (Rule 4.2 violated when local prosecutor ratified police conduct in criminal investigation); State v. Clark, 738 N.W.2d 316 (Minn. 2007) (local prosecutor may not allow police to interview represented criminal defendant without permission of his attorney).
The rules also recognize that a lawyer may have the right to petition a represented governmental client on behalf of an attorney. According to the rules, “communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Minn. R. Prof. Conduct 4.2, comment 5. In other words, in some cases a person may have the right to petition the government for redress through an attorney, notwithstanding the agency’s representation by an attorney.
Arbitration Provisions.
Many contracts—from the contracts that are issued to consumers when they purchase cell phone service or enter a nursing home to complex agreements between sophisticated business parties—contain arbitration provisions. Arbitration agreements require the parties to a dispute to resolve their disputes through arbitration instead of in a lawsuit in court.
Because of the Federal Arbitration Act—enacted by Congress 100 years ago—arbitration agreements in which people relinquish their right to go to court have usually been upheld in most jurisdictions, including Minnesota.
But arbitration provisions in a private consumer contract are not binding on the Attorney General’s Office when it files a consumer protection lawsuit that benefits aggrieved consumers. In the mid-2000s, the Attorney General’s Office filed a lawsuit against a bank for aggressive debt collection practices. The bank moved to compel arbitration, claiming that the Attorney General’s Office was required to arbitrate its claims against the bank because of arbitration language in the bank’s contracts with its customers. The Minnesota Court of Appeals determined that private arbitration agreements are not binding on the Attorney General’s Office because “the state does not step into the shoes of individual card holders in this case but acts as an independent party. The state is asserting a state interest that is based on the facts involving individual card holders.” State ex rel. Hatch v. Cross Country Bank, Inc., 703 N.W.2d 562, 570 (Minn. Ct. App. 2005).
While a private party’s arbitration agreement is not binding on the Attorney General’s Office, the Attorney General’s actions in some cases may be binding on a private party. The Minnesota Supreme Court has held that the Attorney General’s Office may settle and release a private party’s claims under the “private attorney general statute,” which authorizes a private party to sue for certain violations of state laws and recover his or her attorneys’ fees. Curtis v. Altria Grp., Inc., 813 N.W.2d 891, 900-901 (Minn. 2012).
Conclusion
Parties who litigate cases involving the State of Minnesota are well-served to understand these differences described above and other ways in which the authority and duties of public lawyers differ from their private sector counterparts.
***
www.swansonhatch.com
431 S Seventh Street, Suite 2545
Minneapolis, MN 55415 612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
The lawyers in the Attorney General’s Office have different responsibilities than a private lawyer. A private lawyer is charged with zealously representing the interests of her particular client. Public lawyers, however, are responsible to represent the public and safeguard the public interest and the constitution. As a result, public and private lawyers have different responsibilities and obligations.
This article discusses some of the different duties and responsibilities of the two types of lawyers.
Authority to Investigate.
A private party usually lacks authority to compel witnesses to provide information before a lawsuit is filed. Private parties must decide whether to file a lawsuit based on information they can obtain through their own efforts or through the voluntary cooperation of others. In some cases, lack of information can sometimes stymie a private party’s ability to move forward with a lawsuit.
While a party may petition a state court for approval to take a deposition before a lawsuit is filed, this may only be done to “perpetuate testimony.” Minn. R. Civ. P. 27.01. The Minnesota Supreme Court has held that a party may request permission to take a pre-lawsuit deposition to preserve the testimony of a witness (e.g., due to a person’s age, infirmity, or unavailability)—but that a party may not obtain permission to take a pre-lawsuit deposition to investigate the merits of a potential claim. Sandmann v. Petron, 404 N.W.2d 800, 802 (Minn. 1987) (rejecting party’s petition to take deposition to determine if medical malpractice occurred); see also Application of Sitter, 167 F.R.D. 80 (D. Minn. 1996) (same).
By contrast, members of the Attorney General’s Office have broad authority to engage in pre-litigation fact-finding when investigating “unlawful practices in business, commerce, or trade.” Minn. Stat. § 8.31, subd. 1. The Attorney General’s Office may compel the pre-litigation discovery of information if it has “information providing a reasonable ground to believe that any person has violated, or is about to violate,” a law relating to “unfair, discriminatory, and other unlawful business practices.” Id., subd. 2. The Minnesota Supreme Court has held that this simply means that “on the basis of information the Attorney General already has, that it is reasonable for the investigation to continue.” Kohn v. State, 336 N.W.2d 292 (Minn. 1983).
The Attorney General’s authority is derived both from the statutes and the common law. State ex rel. Hatch v. Am. Family Mut. Ins. Co., 609 N.W.2d 1, 3 (Minn. Ct. App. 2000) (“the attorney general has broad common law and statutory authority to bring suits to protect the interests of Minnesota citizens,” including against insurance companies); State v. Ri-Mel, Inc., 417 N.W.2d 102, 110-112 (Minn. Ct. App. 1987) (recognizing broad parens patriae authority of attorney general).
The Attorney General’s Office has authority to bring lawsuits in the name of the State of Minnesota to recover restitution for Minnesota consumers injured by a pattern and practice of fraudulent conduct. State ex rel. Swanson v. Am. Family Prepaid Legal Corp., 2012 WL 2505843, at *4 (Minn. Ct. App. July 2, 2012) (upholding judgment in excess of $7 million against outfit that sold living trusts to senior citizens as a guise for selling annuities); State v. Minnesota Sch. of Bus., Inc., 935 N.W.2d 124, 133 (Minn. 2019) (upholding post-trial restitution process against for-profit college for misleading students into believing schools’ criminal justice programs would qualify them to become police and probation officers).
Authority to Control Litigation.
Private attorneys have authority to make some decisions on behalf of their clients, but they generally take their cues from their clients. By contrast, state lawyers have much broader authority to make decisions in the public interest, even when providing legal services to a state agency or official.
These differences are recognized in the preamble to the Minnesota Rules of Professional Conduct, which states that:
Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple clients….
Minn. R. Prof. Conduct Preamble ¶ 18.
For example, in the 1980s the Attorney General’s Office filed a lawsuit against the former executive director of a public employee retirement fund seeking to recoup improper personal payments for fishing trips and other things. The former employee sought to dismiss the lawsuit on the basis that the retirement fund had not authorized the lawsuit. The Minnesota Supreme Court determined that the attorney general had authority to bring the lawsuit on behalf of the retirement fund, writing that:
As the chief law officer of the state, the attorney general possesses all of the powers inherent in that office at common law. The attorney general may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of this state, the preservation of order, and the protection of public rights.
State v. McLaren, 402 N.W.2d 535, 539 (Minn. 1987). See also State ex rel. Peterson v. City of Fraser, 254 N.W. 776 (Minn. 1934) (describing Attorney General’s authority in legal matters as “plenary” and “beyond the control of any other office or department of the state”).
This authority is also codified in the statutes that specify the powers of the attorney general: “The attorney general shall appear for the state in all causes in the supreme and federal courts wherein the state is directly interested; also in all civil causes of like nature in all other courts of the state whenever, in the attorney general's opinion, the interests of the state require it.” Minn. Stat. § 8.01.
This authority can make the lawyer representing a state agency much more of a “player” in deciding whether a case is sued out, settled, or appealed, and how it is litigated, than a private attorney representing a private client. People negotiating with or litigating cases against the State should keep these differences in mind.
Constitutional Challenges.
The Attorney General’s Office is also responsible to defend the constitutionality of state statutes. Parties sometimes challenge the constitutionality of a statute in enforcement proceedings by the attorney general’s office, forcing the office to both prosecute the main action and defend the ancillary attack on the legitimacy of the statute.
For example, in 2011 the Minnesota Attorney General’s Office filed a lawsuit against a lender that made short-term, high-interest payday loans over the Internet. The lender argued that because it signed the loans in Delaware, the application of Minnesota law to its loans violated the Commerce Clause of the United State Constitution. An attempt by the State to shut down the lender and obtain money back for harmed consumers resulted in a detour to the Minnesota Supreme Court, which determined that the state lending law did not violate the Commerce Clause. State ex rel. Swanson v. Integrity Advance, LLC, 870 N.W.2d 90, 96-97 (Minn. 2015) (upholding $7.76 million judgment against online lender).
Communications with Represented Parties.
Lawyers are generally prohibited from communicating about “the substance of the representation” with a person the lawyer knows is represented by another lawyer (1) without the permission of the other lawyer, (2) unless authorized by court order, or (3) unless authorized “by law.” Minn. R. Prof. Conduct 4.2.
The “authorized by law” exemption in some cases allows the government to communicate with represented parties in ways that would be prohibited by private lawyers.
For example, “communications authorized by law may…include investigative activities of lawyers representing government entities, directly or through investigative agents,” prior to the commencement of enforcement proceedings. Minn. R. Prof. Conduct 4.2, comment 5. But see State v. Miller, 600 N.W.2d 457 (Minn. 1999) (Rule 4.2 violated when local prosecutor ratified police conduct in criminal investigation); State v. Clark, 738 N.W.2d 316 (Minn. 2007) (local prosecutor may not allow police to interview represented criminal defendant without permission of his attorney).
The rules also recognize that a lawyer may have the right to petition a represented governmental client on behalf of an attorney. According to the rules, “communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.” Minn. R. Prof. Conduct 4.2, comment 5. In other words, in some cases a person may have the right to petition the government for redress through an attorney, notwithstanding the agency’s representation by an attorney.
Arbitration Provisions.
Many contracts—from the contracts that are issued to consumers when they purchase cell phone service or enter a nursing home to complex agreements between sophisticated business parties—contain arbitration provisions. Arbitration agreements require the parties to a dispute to resolve their disputes through arbitration instead of in a lawsuit in court.
Because of the Federal Arbitration Act—enacted by Congress 100 years ago—arbitration agreements in which people relinquish their right to go to court have usually been upheld in most jurisdictions, including Minnesota.
But arbitration provisions in a private consumer contract are not binding on the Attorney General’s Office when it files a consumer protection lawsuit that benefits aggrieved consumers. In the mid-2000s, the Attorney General’s Office filed a lawsuit against a bank for aggressive debt collection practices. The bank moved to compel arbitration, claiming that the Attorney General’s Office was required to arbitrate its claims against the bank because of arbitration language in the bank’s contracts with its customers. The Minnesota Court of Appeals determined that private arbitration agreements are not binding on the Attorney General’s Office because “the state does not step into the shoes of individual card holders in this case but acts as an independent party. The state is asserting a state interest that is based on the facts involving individual card holders.” State ex rel. Hatch v. Cross Country Bank, Inc., 703 N.W.2d 562, 570 (Minn. Ct. App. 2005).
While a private party’s arbitration agreement is not binding on the Attorney General’s Office, the Attorney General’s actions in some cases may be binding on a private party. The Minnesota Supreme Court has held that the Attorney General’s Office may settle and release a private party’s claims under the “private attorney general statute,” which authorizes a private party to sue for certain violations of state laws and recover his or her attorneys’ fees. Curtis v. Altria Grp., Inc., 813 N.W.2d 891, 900-901 (Minn. 2012).
Conclusion
Parties who litigate cases involving the State of Minnesota are well-served to understand these differences described above and other ways in which the authority and duties of public lawyers differ from their private sector counterparts.
www.swansonhatch.com
431 S Seventh Street, Suite 2545
Minneapolis, MN 55415
612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
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Swanson | Hatch, P.A.
431 S. 7th Street, Suite #2545
Minneapolis, MN 55415
612-315-3037
www.swansonhatch.com