October 6, 2022
On October 3, 2022, the U.S. Supreme Court agreed to hear a case involving the application of the attorney-client privilege, which protects the confidentiality of communications between attorneys and their clients. The grant of certiorari was a victory for the California Lawyers Association (CLA), which filed an amicus brief on June 1 urging the court to hear the case. This is the most consequential attorney-client privilege case that will be heard by the U.S. Supreme Court in several decades.
In re Grand Jury, 23 F.4th 1088 (9th Cir. 2022), involves 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. In that case, the Ninth U.S. Circuit Court of Appeals had held that a dual-purpose communication is only privileged when the most significant purpose is legal.
There is currently a three-way split among the circuits as to how to assess dual-purpose communications. CLA supports adoption of the test set forth by the D.C. Circuit Court of Appeals in 2014, which held that attorney-client privilege applies to dual-purpose communications if “obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.” That test was articulated in In re Kellogg Brown & Root, Inc., 756 F3d 754, 760 (D.C. Cir. 2014).
“We are grateful that the Supreme Court has agreed to resolve the confusion created by the three-way split in the circuits and protect the sacred relationship between attorneys and their clients,” said CLA President Jeremy M. Evans. “We appreciate our member leaders, including Adria Price, Laura L. Buckley, and H. Thomas Watson, who worked on our amicus brief and helped bring attention to an issue with nationwide significance.”
CLA plans to follow up its advocacy by filing an amicus brief on the merits with the U.S. Supreme Court.
“CLA believes the test applied in Kellogg provides the most clarity and protection to the attorney-client privilege, which is of the utmost importance to our members and their clients,” CEO and Executive Director Oyango A. Snell said.