The United States Supreme Court has changed its mind as to whether to rule on the proper test to assess the applicability of the attorney-client privilege to dual purpose communications. Last year, the Supreme Court granted certiorari over a case (In re Grand Jury, No. 21-1397) that posed the question of what test to apply over communications that serve dual business and legal purposes when the legal content cannot be extracted from the business content for redaction. However, on January 23, 2023, the Supreme Court dismissed the writ of certiorari.
The Supreme Court heard oral argument on January 9. The respondent argued for the “primary purpose” test under which a communication is not privileged if the legal purpose for the communication was not the primary purpose. The petitioner argued for a “significant purpose” test wherein the communication could be protected by the privilege so long as the communication had a legitimate legal purpose. During argument, the justices and the parties grappled with the various tests for assessing privilege and how said tests would apply to hypothetical situations (e.g., in internal investigations, in scenarios where an attorney is included in a business meeting to weigh in as the attorney sees fit, or over email exchanges about business matters that copy a lawyer so that the lawyer may identify legal considerations, if any). There was also grappling at the hearing regarding the interplay between differing federal and state recognition of the attorney-client privilege. We provided more context to these arguments in our prior posting about this case.
Yesterday, on January 23, 2023, two weeks after hearing oral argument, the Supreme Court dismissed the writ of certiorari it previously had granted, stating only, “The writ of certiorari is dismissed as improvidently granted.”
That the Supreme Court reversed course on its certiorari decision and decided not to mire into this thicket underscores how very complex questions of privilege can be, particularly for in-house counsel who may furnish joint legal and business advice. To have the best chance at protecting privileged communications, in-house counsel and their clients should ensure they are knowledgeable about privilege issues and best practices for preserving privilege.
Foley has the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Government Enforcement Defense and Investigations Group with any questions.