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(Reuters) – Most of the groups that filed friend-of-the-court briefs last week in a pivotal U.S. Supreme Court case on the scope of attorney-client privilege rallied around one limiting principle: Lawyers’ communications with their clients must be protected. as long as an important purpose of the interaction was to provide legal advice.
But for the American Bar Association, even that limit on the scope of the privilege is too restrictive. The ABA’s amicus brief urged the Supreme Court not to adopt any new tests that would restrict the privilege beyond a few long-established exceptions.
“There is no reason to create a new exception for communications that involve a genuine legal purpose but are somehow ‘insignificant,’” wrote ABA attorney Deborah Enix-Ross. “Lawyers and clients should be able to be certain that their communications are confidential as long as the purpose of those communications is to obtain or provide legal advice and no other well-established exception applies.”
The group of lawyers agreed with many other amici, including the US Chamber of Commerce and the Corporate Lawyers Association, that the Supreme Court should reverse the Grand Jury ruling of the Ninth Circuit Court of Appeals for The US, which held that attorney-client privilege did not conceal communications whose primary purpose was to provide business advice, even if the attorneys were also providing legal advice. Unlike nearly all other amici, however, the ABA insisted that any evidence that requires courts to retrospectively assess the motivation of clients to communicate with their attorneys would undermine the intent of attorney-client privilege.
That’s a broader view than even offered by the petitioner in the Supreme Court case, an unnamed law firm that specializes in international tax issues. (Few of the details of the underlying grand jury investigation have been released publicly. We only know that a client of the law firm under investigation claimed privilege over communications that had the dual purpose of facilitating tax return preparation and provide legal advice on taxes).
Counsel for the Supreme Court law firm of Munger, Tolles & Olson argued in his Nov. 16 merits brief that judges should adopt the privilege test set forth in a 2014 DC Circuit decision, In re Kellogg Brown & Root Inc., which involved communications generated in an internal investigation at the defense contractor.
The DC Circuit, in an opinion written by then-Judge Brett Kavanaugh, concluded that where communications serve a dual, overlapping purpose of providing business and legal advice, “it may be an inherently impossible task” for courts to discern a single “purpose.” Instead of forcing trial judges to discover the prevailing motive underlying communications with clients, the DC Circuit concluded that attorney-client privilege applies whenever legal advice is one of the important purposes of the interaction.
That so-called significant purpose test, according to the tax boutique’s background brief, “neither expands nor contracts the historical limits of attorney-client privilege.”
The US Chamber (which filed a joint brief with the corporate lawyers association and the Securities and Financial Markets Industry Association) told the Supreme Court that courts evaluating privilege claims have considered for decades if the communications served an important legal purpose to ensure that clients were not asserting overly broad claims of privilege. Enshrining a significant purpose test, the House lawyers at Williams & Connolly argued, would simply ensure “that there is a bona fide legal purpose for the communication, and not a mere effort to protect communications between individuals for other reasons.” .
Other amicus petitioners in the Supreme Court, including defense attorney groups Lawyers for Civil Justice and the DRI Center for Law and Public Policy, similarly argued that, in practice, the DC Circuit’s significant purpose test would preclude claims of unjustified privileges.
The Ninth Circuit panel in the grand jury case was concerned about companies attempting to protect documents that would otherwise be subject to subpoena or civil discovery simply by adding attorneys’ names to business communications. But defense attorney groups argued that the DC Circuit standard would still require judges to review allegedly privileged documents to determine their significant legal purpose.
Defenders of the DC Circuit standard told the Supreme Court that clients and their attorneys need more certainty about whether their communications are protected, particularly as technology has made it easier for clients to consult attorneys on a wide range of issues. The significant purpose test, they argued, provides more of that certainty than the Ninth Circuit’s primary purpose test because it is easier for a judge to discern that legal advice was an important element of client communications rather than to determine whether the legal advice was the main purpose of the exchange
The ABA, on the other hand, is of the opinion that even the most direct investigation leaves too much room for judicial discretion. That means clients and their lawyers cannot be sure, even under the significant purpose test, that their exchanges are protected by privilege, according to the report.
The ABA said there is no reason for the Supreme Court to “cloud the analysis of a traditional privilege.” Whenever a client seeks legal advice or consults with a lawyer, the group said, communications are privileged unless subject to existing exceptions.
The US Department of Justice, which did not respond to my inquiry about amicus requests for the Supreme Court to adopt a “significant purpose” test, previously told judges that the Ninth Circuit’s decision in the case The prosecutor was not inconsistent with the DC Circuit’s decision in the Kellogg case, but rather relied on the specific facts of the tax advice provided to the client of the law firm under investigation.
Given the ABA’s influence on issues of professional conduct, it will be interesting to see if the government addresses its argument that even a relatively lenient check on privilege claims is too demanding.
US Supreme Court Grants Review in Crucial Attorney-Client Privilege Case
Ninth Circuit rejects broad privilege test for legal and business advice
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