Summer 2023

Dual-Purpose Communication and the Future of Attorney-Client Privilege

Attorney-client privilege is one of the oldest and most enduring privileges for confidential communications in the Anglo-American legal system. The privilege encourages clients to make full and complete disclosures to their attorneys, who are then able to provide candid advice and more effective representation. While Americans from all walks of life have heard of attorney-client privilege, it is critical for both attorneys and clients to understand the extent of the privilege. The popular understanding of the privilege is greatly influenced by television, where it is often portrayed as protecting anything said between attorney and client. However, the TV lawyers miss the mark.

To determine whether communication between a lawyer and a client is privileged, most courts employ a “primary purpose test.” Under this test, a communication is privileged only when the primary purpose of the communication is to gain or provide legal advice. While this may sound straightforward, consider that attorney-client interactions are often multi-faceted. What happens when a communication contains both legal and nonlegal advice? This is known as “dual-purpose” communication, and it has proven difficult for clients, attorneys, and judges to navigate in practice. With limited information, a court applying the primary purpose test to a dual-purpose communication must essentially weigh the possible purposes involved to determine if the communication is privileged. The dual-purpose communication problem occurs most frequently when in-house counsel is involved. An in-house attorney routinely performs business functions while also providing legal advice for the corporate client.

Earlier this year, the United States Supreme Court appeared poised to address the scope of attorney-client privilege in the context of dual-purpose communications. In In re Grand Jury, an unnamed law firm received a subpoena related to a grand jury investigation of a firm’s client. The law firm had been hired to prepare the client’s tax returns. Citing attorney-client privilege, the law firm refused to comply with the subpoena. The district court ordered the law firm to produce documents that contained both legal and non-legal advice unless the legal advice was the document’s primary purpose. The firm again refused and argued that the documents should be privileged so long as legal advice was a significant purpose for the communication. The firm was held in contempt and appealed to the Court of Appeals for the Ninth Circuit. The Ninth Circuit agreed with the trial court and found that the court appropriately applied the primary purpose test. The United States Supreme Court granted an appeal.

At oral argument, the justices expressed some concern that adopting the law firm’s significant or bona fide legal purpose test would constitute a large expansion of the attorney-client privilege, leading to increased secrecy in federal cases. The United States, the respondent in the case, argued that the Supreme Court should reject the law firm’s proposed test and affirm the Ninth Circuit’s decision. However, the government’s attorney struggled to explain how a judge should decide whether legal advice was predominant under the primary purpose test. Does a particular communication have to be 51% in favor of a legal purpose to be privileged? The government’s attorney could not give a definitive answer but insisted that district courts have been able to make tough calls in this area and that any change in the law would be destabilizing.

The American Bar Association, the largest voluntary association of attorneys on the planet, wrote an amicus brief in support of the law firm. In its brief, the ABA argued that the primary purpose test, at least as applied by the Ninth Circuit, “does not allow clients to confidentially share full information with their lawyers in dual-purpose scenarios” and involves courts in “endless parsing of communications.” Interestingly, the ABA also called on the high court to reject the law firm’s proposed test. The ABA argued that attorney-client privilege should apply so long as a purpose of the communication is to solicit or provide legal advice, regardless of the significance of that purpose. Essentially, the ABA advanced an “any legal purpose” test. There were more than ten amicus briefs field in In re Grand Jury. None of them supported the government’s position.

Instead of deciding the case, the Supreme Court (anticlimactically) dismissed In Re Grand Jury as improvidently granted. It is rare for the court to dismiss a case as improvidently granted, and the exact reasons for doing are usually unclear. Some court commentators believe that the Supreme Court will do this when a particular case does not present the best vehicle to decide an important legal issue.

While the Supreme Court may have punted on the dual-purpose communication problem for now, the court may well address the issue in the coming years. After all, it is likely the Supreme Court would have never agreed to hear in In re Grand Jury in the first place if the justices had no interest in clarifying the scope of attorney-client privilege. Also, if the justices were confident in the efficacy of the primary purpose test, the court could have simply affirmed the judgment of the Ninth Circuit.

A move away from the primary purpose test towards the approach advocated by the ABA in its amicus brief offers unmistakable appeal. An “any legal” purpose test is predictable and easy to apply. It is also more faithful to the purpose of the attorney-client privilege, which is to give one the security to speak freely to counsel so that counsel is better equipped to represent and advise. No one can predict where the court will go in the future, but clients and attorneys need to be aware of the problem dual-purpose communication presents and the extent of the attorney-client privilege.

For more information contact Stephen J. Marshall.