Are all communications with your attorney protected by the attorney-client privilege? The short answer is ”no”. The longer answer is that it depends. On October 3, 2022, the Supreme Court granted certiorari in In re Grand Jury, 23 F. 4th 1088 (9th Cir. 2021), and oral argument was heard January 9, 2023. The expectation was that the Supreme Court would decide whether attorney-client privilege applies to “dual-purpose” communications and address a circuit split for the test to use when evaluating those communications; however, on January 23, 2023, the Supreme Court issued a per curiam order dismissing the writ of certiorari as improvidently granted.
Q: What are “dual-purpose” communications?
A: “Dual-purpose” communications are communications that involve both legal and non-legal/business advice and concerns.
Q: What is the current circuit split?
A: There are currently two separate tests employed by the federal circuits:
- The “primary purpose” test is employed by the Second, Fifth, Sixth and Ninth Circuits. Under the “primary purpose” test, “courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice.” Id. at 1091. The practical consequence of the “primary purpose” test is that a “dual-purpose” communication can only have a single “primary” purpose.
- The “significant purpose” test is employed by the D.C. Circuit. See In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014). Under the test, the courts look to whether obtaining or providing legal advice was “a primary purpose of the communication, meaning one of the significant purposes of the communication”. In re Grand Jury, 23 F. 4th at 1094.
- The Seventh Circuit has held that “dual-purpose” communications are not privileged, at least in the context of tax advice. See United States v. Frederick, 182 F.3d 496, 501 (7th Cir. 1999).
Q: Why does it matter to you?
A: The Supreme Court did not provide clarity on what test to employ, so the circuit split remains. Regardless of that, proactive steps should still be taken to ensure that communications are kept privileged in the event of litigation.
Given that evaluating whether the privilege applies to certain communications requires a post-hoc review by the courts, clients and attorneys alike should strive to ensure that the primary purpose of the communication is to give or receive legal advice to ensure it is maintained as protected communication. This is even more apt for in-house counsel where their communications on a daily basis may include pending litigation and corporate matters.
While the Supreme Court did not give clarification to when the privilege applies and the test to be applied in federal courts, a decision would not have answered all of the questions as to whether a communication is protected by the attorney-client privilege in every court across the country. The lower federal courts will now be left again to grapple with these issues until the Supreme Court again decides to wade into the fray.
This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
Morgan I. Marcus | Commercial Litigation, Bankruptcy, Creditors’ Rights, Appellate Practice
Morgan brings 10 years of experience in representing financial institutions, loan servicers, and creditors on the trial and appellate levels in federal, state, and bankruptcy courts and in arbitration. His focus is on commercial litigation, creditors’ rights, and bankruptcy litigation. If you need assistance with a related matter, contact Morgan.