ABA asks SCOTUS to preserve long-standing attorney-client privilege
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In an amicus brief filed Wednesday, the ABA urged the U.S. Supreme Court to consider client-lawyer communications privileged, even if the purpose of some of those communications is not to request or give legal advice.
“It is common for clients to seek legal counsel in situations where legal purposes substantially overlap with business, regulatory compliance and other not-exclusively-law-related purposes,” according to the ABA’s amicus brief. “Indeed, clients will sometimes discuss entirely irrelevant, personal topics with their lawyers, while also seeking legal advice. … Such discussions should be protected as a whole, not parsed sentence by sentence or phrase by phrase.”
The ABA filed the amicus brief in In Re Grand Jury, a case involving a law firm that provided one of its clients with legal advice related to its anticipated expatriation. The firm also prepared several of the client’s individual income tax returns and the form that certified its compliance with expatriation tax requirements.
The law firm and its client were later served with grand jury subpoenas that requested documents and communications related to a criminal investigation. They provided some of these documents but withheld others, citing attorney-client privilege and the work-product doctrine.
In September 2021, the 9th U.S. Circuit Court of Appeals at San Francisco affirmed a lower court’s ruling, which found the law firm and its client in contempt for failing to comply with the subpoenas. The appellate court held that certain dual-purpose communications—which involve legal and business concerns—were not privileged because their “primary purpose” was to give or receive tax advice and not legal advice.
The 9th Circuit also rejected arguments from the law firm and its client that a different version of this test—which focuses on “a primary purpose” instead of “the primary purpose”—should be relied on in their case.
The Supreme Court agreed to hear the case Oct. 3 and set oral argument for Jan. 9, 2023. The question presented is: “whether a communication involving both legal and nonlegal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication,” according to an ABA press release.
The ABA argues in its amicus brief that the roots of attorney-client privilege date back to the 16th century, and that a strong and well-established privilege ensures that clients feel comfortable providing complete information to their attorneys and that attorneys can provide fully informed legal advice.
By relying on its primary-purpose test, the 9th Circuit undermines that certainty and harms the legal system and society as a whole, the ABA said.
“It should be enough that one of the purposes of involving a lawyer was the desire to obtain legal advice,” according to the ABA. “Otherwise, clients will be inhibited in their disclosures to their lawyers, fearful that ‘after the fact of communication, a judge could surmount the privilege on the basis of the judge’s ad hoc assessment.’”
The ABA also contends that while this case involves tax law, the Supreme Court’s final say on attorney-client privilege could affect other practice areas, such as criminal law, family law, immigration, bankruptcy and trusts and estates.
“Many, if not all, areas of legal practice involve client communications where the purposes will be mixed and unclear, not just at the outset but throughout the attorney-client relationship,” the ABA said. “This court, then, should be extremely cautious in endorsing a new ‘test’—which creates an exception to the privilege—that would impose unclear boundaries and that is also unnecessary to decide this case.”
The ABA has long supported the preservation of attorney-client privilege.
Among its policies, the House of Delegates adopted a resolution in August 2005 that described attorney-client privilege, as well as the work-product doctrine, “as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal matters fully and candidly with their counsel.”
The measure also expressed opposition to government policies and procedures that erode attorney-client privilege and the work-product doctrine and officials’ practice of seeking to waive attorney-client privilege or the work-product doctrine.
Colvin & Hallett in Seattle filed the brief pro bono on behalf of the ABA.
