On January 23, 2023, the United States Supreme Court dismissed the writ of certiorari as improvidently granted in a case that asked the Court to consider how to determine the application of attorney-client privilege to so-called "dual-purpose" communications, i.e., communications that reflect both legal and non-legal advice. In re Grand Jury, No. 21-1397, slip op., 589 U.S. ___ (2023). As we covered in a previous post, the Court granted a petition for certiorari to review a Ninth Circuit decision that held that the "primary purpose" should apply, which the Ninth Circuit stated requires the court to look to whether the primary purpose of the communication was to give or receive legal advice. The Ninth Circuit had expressly left open whether the test should focus on determining whether "a primary purpose" or "the primary purpose" is seeking or providing legal advice. In re Grand Jury, 23 F.4th 1088, 1091-92, 1094 (9th Cir. 2022).
The Court heard oral argument on January 9, 2023. The petitioner initially argued that a communication should be privileged if a significant purpose of the communication was to obtain legal advice, and at oral argument went further to urge adoption of a test that simply asked whether there was a bona fide, or legitimate, legal purpose to the communication. The government argued that the test should be whether "the" primary purpose was legal, and that adoption of petitioner's proposed test would vastly expand the attorney-client privilege. The Court appeared to acknowledge that a "primary purpose" test has generally been adopted by most federal and state courts. The questioning from the Justices at oral argument seemed primarily intended to explore whether modifying the test—in one direction or another—was necessary and what was involved as a practical matter for the courts in applying any particular test. Some Justices appeared concerned that adopting a test focused on determining whether legal advice was "the" primary purpose for the communication is not a sufficiently concrete standard for trial courts working to resolve privilege disputes, while others seemed concerned about the possible reach of petitioner's proposed test.
In a one-page order, the Court reversed course and dismissed the writ of certiorari as improvidently granted (i.e., indicating that in the Court's view it should not have accepted the case). A decision on the merits by the Court would have likely had far-reaching implications for the conduct of discovery in cases arising under federal law and potentially affected state law developments concerning privilege. The Court could have provided more certainty for counsel and companies. As the Association of Corporate Counsel noted in a joint amicus brief filed with the U.S. Chamber of Commerce, a ruling from the Court would have provided more "predictability" in assessing to what extent certain dual-purpose communications meet the threshold of an attorney-client communication. With the Court declining to provide a decision in this case, parties will continue to dispute whether and how such communications are protected by privilege.
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