On January 23, 2023, after hearing an extensive oral argument, the Supreme Court dismissed In re Grand Jury, 23 F.4th1088 (9th Cir. 2021), cert granted, 143 S. Ct. 80 (2022), a highly anticipated case about how the attorney-client privilege applies to "multipurpose" communications. Absent clear direction form the Supreme Court, lawyers and their clients should continue to look to the relevant state and federal authority to apply the attorney-client privilege to multipurpose communications.
As covered in our client alert issued last week, the In re Grand Jury Petitioner argued that multipurpose communications should be protected by the attorney-client privilege as long as seeking legal advice was a "significant" or "bona fide" purpose of the communication. According to Petitioner, this approach would also yield more predictable results for clients trying to preserve the attorney-client privilege. The Government supported continuing the "primary purpose" test under which a communication is privileged if the primary purpose of the communication was seeking legal advice.
Ultimately, the Supreme Court declined to decide these issues. It issued an opinion stating that "[t]he writ of certiorari is dismissed as improvidently granted." With the case dismissed, the Ninth Circuit's decision applying the primary purpose test, and concluding that the multipurpose communications were not subject to the attorney-client privilege, remains in place. Also, courts will likely continue to use the primary purpose test.
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