In-house attorneys, who offer both business and legal advice, were looking forward to some judicial clarity on the scope of the attorney-client privilege. Instead, they’ve been left disappointed.
SCOTUS decided to dismiss an appeal styled In re Grand Jury, which would have settled what standard should govern privilege in these dual purpose communications situations:
- Only apply the privilege in instances where legal advice is the predominant purpose, or
- Apply the privilege any time legal advice is a predominant purpose
The appellant sought to have the Court expand the privilege beyond these two alternatives to cover any communication in which an attorney imparted advice to their client in other than mechanical ways. The appellee contended that the privilege applies only when a communication is made so the client can receive legal advice and not predominantly for another purpose.
For attorneys working in house, communications about business and legal concerns often overlap in a way that a court may not be able to disentangle them. For jurisdictions that use the article “the” to describe the purpose for the communication, the court may require the entire communication to be disclosed – both business and legal matters. For jurisdictions allowing the privilege to stand whenever the communications in question have “a” predominant purpose of conveying legal advice, the risk of a court requiring disclosure is lower.
While it is worth noting that the Court dismissed the appeal after oral argument — leaving court-watchers to wonder if SCOTUS might address the issue in another case at some point in the future — it doesn’t look like the Court will clarify the issue any time soon.
For now, attorney communications remain subject to courts evaluating their underlying purpose in deciding whether the privilege attached. It makes sense to keep that in mind when communicating as you’ll want to ensure that the predominant purpose for attorney-client communication is to convey legal advice.
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Becker attorneys represent public and private clients in complex business litigation throughout the United States in federal and state courts, and in arbitration.
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About the Author
Jon Polenberg is a senior trial lawyer for Becker & Poliakoff, P.A., headquartered in Ft. Lauderdale, FL, who regularly represents clients for their matters proceeding in state court, federal court, arbitration, and regulatory agencies. Jon also heads up e-discovery and data analytics for the firm’s business litigation practice. He represents clients in both symmetric and asymmetric matters involving varied complex e-discovery and legal issues.