California Lawyers Association Asks U.S. Supreme Court to Establish Boundaries of Attorney-Client Privilege

The California Lawyers Association (CLA) has asked the U.S. Supreme Court to resolve the test that applies to communications between lawyers and their clients involving both legal and nonlegal purposes, known as dual-purpose communications, and when those communications are protected by the attorney-client privilege. CLA supports adoption of the test that provides the most protection to the attorney-client privilege.

In an amicus brief filed June 1, CLA urges the Supreme Court to grant a petition for certiorari to review a Ninth Circuit decision, In re Grand Jury, 23 F.4th 1088 (9th Cir. 2022), which created a three-way split among the Circuit Courts on the issue of attorney-client privilege and dual-purpose communications.

The Ninth Circuit held that a dual-purpose communication is only privileged when the most significant purpose is legal. This test requires courts to evaluate and balance all the purposes for the communication. The decision conflicts with the D.C. Circuit, which found that a dual-purpose communication is privileged when it has a significant legal purpose. In the Seventh Circuit, a dual-purpose communication is never privileged.

CLA argues that the attorney-client privilege needs to be clearly defined so attorneys know the boundaries of the privilege and clients know when they can communicate freely and candidly with their counsel to ensure they are receiving competent and informed legal advice. CLA endorses the D.C. Circuit’s test.

“The CLA urges this Court to grant certiorari to protect this sacrosanct tenant of the legal profession and resolve the conflict in the circuit courts,” the amicus brief says. “The CLA has an interest in ensuring there are uniform and clear rules regarding whether a communication is privileged, especially when those rules substantially affect a broad spectrum of attorneys in many practice disciplines.”

Adria Price and Laura L. Buckley of CLA’s Taxation Section authored the brief, with editing and technical appellate assistance from H. Thomas Watson of CLA’s Amicus Committee.

“We appreciate the work of these dedicated volunteers who are helping to bring attention to an issue with nationwide significance for lawyers and their clients across the country,” CLA President Jeremy M. Evans said.

“This amicus brief highlights CLA’s invaluable role in advocating on issues of interest to our members and the legal profession as a whole,” CEO and Executive Director Oyango A. Snell said.

About California Lawyers Association:
Established in 2018, CLA is the bar association for all California attorneys. CLA’s mission is to promote excellence, diversity and inclusion in the legal profession and fairness in the administration of justice and the rule of law.