Never Mind: Supreme Court Dismisses Attorney-Client Privilege Case After Oral Argument – Trials & Appeals & Compensation

Key Takeaways:

• On January 23, 2023, two weeks after hearing oral argument, the
  U.S. Supreme Court did an about-face in a closely watched case
  about the scope of attorney-client privilege. The Court said that
  certiorari was “improvidently granted.”




• The Court’s decision to pass on this case leaves the status
  quo in place. As a result, the test used to evaluate whether
  “dual purpose” communications can properly be withheld as
  privileged varies by jurisdiction, with most of the states and
  Circuits that have addressed this issue applying the “primary
  purpose” test that was before the Court.

Background and Discussion

In re Grand Jury concerns a dispute between an unnamed
company together with its unnamed law firm and the Government over
whether the law firm was required to produce certain “dual
purpose” communications—communications that had both
privileged and non-privileged purposes—in a criminal tax
investigation of the company.¹

The withheld communications had a dual purpose: they allowed the
firm to provide the company with legal advice concerning how to
comply with tax laws, and facilitated the law firm’s
“mechanical preparation” of the company’s tax
returns. According to the firm, “these ‘dual-purpose’
communications included … interpretations of unsettled statutory
requirements regarding whether certain assets are subject to
Treasure Department foreign reporting requirements, strategies for
filing amended income tax returns, and the Client’s questions
about and comments on drafts submissions to the IRS advocating for
the abatement of a penalty assessment.”²

The law firm maintained that the dual-purpose documents were
privileged and the Government moved to compel their
production.³ After in camera review, the
district court granted the Government’s motion in part. The
Central District of California judge explained that “although
communications that are only about tax return preparation are not
covered by the attorney-client privilege, communications seeking
legal advice about what to claim on tax returns or other
tax-related legal advice may be privileged” when “the
primary purpose of the communication was to obtain or provide such
legal advice.”⁴ The firm appealed, where the
principle issue was what test to apply,⁵ and the Ninth
Circuit affirmed the district court’s use of the “primary
purpose test.”⁶

This “primary purpose” test stands in contrast to the
“significant purpose test” adopted by the D.C. Circuit in
its 2014 In re Kellogg Brown & Root, Inc.
decision, authored by then Circuit Judge
Kavanagh.⁷ There,the D.C. Circuit rejected the
“primary purpose” test in favor of the more lenient
“significant purpose” test, holding that a dual-purpose
communication is properly withheld as attorney-client privilege if
“one of the significant purposes” of the communication
between the client and lawyer was to obtain or provide legal
advice.⁸

On April 5, 2022, the law firm filed a petition for
certiorari seeking review of the Ninth Circuit’s
decision.⁹ This petition described the issue as
“whether a communication involving both legal and non-legal
advice is protected by attorney-client privilege where obtaining or
providing legal advice was one of the significant purposes behind
the communication” and argued that the Supreme Court should
take on the case in view of the circuit split.¹⁰
Notably, although the briefing in In re Grand Jury largely
focused on the split between the “primary purpose” and
“significant purpose” tests, the Seventh Circuit has
taken a different but more stringent approach – at least in
the context of tax-related documents – concluding that a dual
purpose tax-related document can never be privileged.¹¹
The Supreme Court granted certiorari on October 3,
2022.

During the January 9, 2023 oral argument, Justice Sonia
Sotomayor noted that “the vast majority of states use the
primary purpose test,” and Justice Elena Kagan noted that no
federal appeals court until 2014 had used a different standard.
Justice Kagan also asked the lawyer representing the unnamed law
firm to comment on “the ancient legal principle of ‘if it
ain’t broke, don’t fix it’.” Two weeks later, on
January 23, 2023, the Supreme Court issued an unsigned,
one-sentence Order dismissing the case, stating that
certiorari was improvidently granted. As a result, there
is no change to the status quo – the test used to evaluate
whether “dual purpose” communications can properly be
withheld as privilege varies by jurisdiction with most states and
Circuits that have addressed this issue applying the “primary
purpose” test.

Footnotes

1. In re Grand Jury,No 21-1397, Brief for the
Petitioner at 4 (Nov. 16, 2022)

2. Id. at 6

3. In re Grand Jury, No. 21-1397, Brief for
Government at 2 (Dec. 7, 2022)

4. Id.

5. In re Grand Jury,No 21-1397, Brief for the
Petitioner at 9 (Nov. 16, 2022)

6. In re Grand Jury, No. 21-1397, Brief for
Government at 2 (Dec. 7, 2022)

7. In re Kellogg Brown & Root, Inc., 388,
756 F.3d 754, 760 (D.C. Cir. 2014) (Cavanaugh, C.J.)

8.Id.

9. In re Grand Jury, No. 21-1397 Petition for
Certiorari (Apr. 1, 2022)

10. Id. at I, 2.

11. United States v. Frederick, 182 F.3d 496,
501 (7th Cir. 1999)

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.