In re Grand Jury, 214 L. Ed. 2d 329 (U.S. 2023) invited the Supreme Court to answer a recurrent question: when a client confers with an attorney and receives both legal and non-legal advice, and the non-legal advice cannot be distinguished from the legal advice, does the attorney-client privilege protect all of the advice or none of it?
Federal Courts utilize different tests to determine whether an attorney’s dual-purpose communications are shielded from disclosure by the attorney-client privilege. The “primary purpose” test considers whether the primary purpose of the communication is to give or receive legal advice. In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007). The broader “because of” test “considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation.” In re Grand Jury Subpoena (Mark Torf/Torf Env't Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004).
In this case, the U.S. District Court for the Central District of California held Appellants (a law firm and a company) in contempt after they failed to comply with grand jury subpoenas related to a criminal investigation. In re Grand Jury, 13 F.4th 710, 714 (9th Cir. 2021). Appellants argued that the district court erred in relying on the "primary purpose" test and should have instead relied on a broader "because of" test. They claimed that the communications were made in anticipation of litigation and therefore should be protected. The district court ruled that certain dual-purpose communications were not privileged because the "primary purpose” of the documents was to obtain tax advice, not legal advice.
After initially granting certiorari, and hearing oral argument, the Supreme Court then reversed course and dismissed the writ of certiorari as “improvidently granted.” That had the effect of permitting the Circuit Court ruling to stand. That falls short, however, of resolving the conflicting standards being applied by courts in different circuits.