Supreme Court Hears Arguments on Application of Attorney-Client Privilege

It happens often enough that lawyers receive communications from clients that have a "dual purpose." In part the communication seeks legal advice. In part, though, the communication asks for business, or family, or personal advice. Indeed, many of us find the part of practice that allows us to consider how the law affects our clients' lives the most rewarding part of the work.

When, though, a communication has two purposes, is the document still protected by the attorney-client privilege?

The US Supreme Court took up this question in argument this week in In re Grand Jury.

The argument started out with the assumption all around that there there were two positions on the question.  Petitioner argued that the test should be whether the communication with the lawyer contained a "bona fide" or "legitimate" need for legal advice. Sometimes they urged that a bona fide legal question had to be "significant" to enjoy the attorney-client privilege.

The Government, by contrast, urged that the prevailing test in federal courts has been, and should remain, whether the communication in question had a "primary purpose" of seeking legal advice. In making that argument, the Government similarly urged that the primary purpose must also be a significant one for the privilege to apply.

Both the Petitioner and the Government got wrapped around the axle of trying to sort out what "primary" or "significant" means. Does it mean 70% of the communication is for legal advice? How about 51%? What if only 2% of the email in question relates to legal advice, but the advice is really important to the case?

Both sides were confronted with the question of whether clients may, tactically, seek to make communications privileged if they know that by keeping some minimum amount of the communication related to legal advice, they can thereby insulate from discovery larger non-business questions.

The Justices seemed more than a little uncertain about how to analyze, much less decide, the question:

• Justice Gorsuch grimaced that it was difficult to tell what the meaningful differences were between the parties' positions inasmuch as they seemed to use some of the same labels and descriptors to describe their proposed tests.
• Justice Sotomayor observed that the work of reviewing documents to redact the privileged bits and produce the non-privileged bits is something the federal courts know how to do already.
• In the same vein, Justice Kagan asked counsel for the Petitioner: "[W]ould you just comment on, you know, the ancient legal principle, 'if it ain't broke, don't fix it?'"
• Justice Barrett suggested the Court may craft an opinion endorsing the "primary purpose" test but declining to give much further guidance on what that means either qualitatively or quantitatively.

It's important to note that whatever the US Supreme Court decides, its decision about the attorney-client privilege will apply to its use only in the federal courts. Clients and lawyers who want to game (or, more charitably, strategize) how to use the attorney-client privilege will have to consider how their communications will be insulated in federal court and, separately, the state courts where they're most likely to appear.

How much legal advice must be included in an email to make it privileged may be the 21^st century equivalent of Thomas Aquinas's musings about angels on the head of a pin. Expect a ruling in this case later in the spring or early summer.

In the meantime, lawyers desiring to maintain privilege should consider sending clients separate communications for separate purposes. Send one email for legal advice. Send a second one with business, or public relations, or family advice – you know, the advice that puts human flesh on legal bones. It's fine to reject the impracticality of that approach.  Just know that if you do, you're down the privilege rabbit hole of asking if your email, or phone call, is primarily or significantly, or legitimately, or predominantly, legal advice.

Update (1/23/2023):

Well, apparently lots of people thought the attorney-client privilege argument at the US Supreme Court was bewildering. Specifically, the nine people who work full-time as Justices on the US Supreme Court.

Today, the case In re Grand Jury came to its ignominious end. The Court dismissed the case as "improvidently granted." While the name of that sort of dismissal suggests it was the Court's fault for taking it up in the first place, the clear subtext is, "please take your strange problem to a different place."

A dismissal because of an improvident grant of writ of certiorari, or DIG, isn't unheard of. But it's not common. It's even less common after oral argument.

With this dismissal, lawyers will continue to muddle through as before: reviewing the attorney communications and deciding if they're for the purpose of giving or receiving legal – as opposed to business or personal or financial – advice. If it's legal advice, they may withhold the document from production, or redact the portion of the document that has legal advice.