This important case marks the first time in 40 years that the Supreme Court has taken up the issue of attorney-client privilege.
Washington – The Association of Corporate Counsel (ACC), along with the U.S. Chamber of Commerce, filed an amicus brief in the U.S. Supreme Court case, In re Grand Jury, on November 23. This important case marks the first time in 40 years that the Supreme Court has taken up the issue of attorney-client privilege.
At issue in this case is which test courts should use to determine whether attorney-client privilege applies to “dual purpose” communications – those in which there is more than one motivation for a communication that occurs between an attorney and client. There are several potential tests at play in the circuit courts, with two at the forefront: the “primary purpose” test employed by the Ninth Circuit here and the “significant purpose” test developed by Justice Brett Kavanaugh when he was a judge on the D.C. Circuit.
The ACC-Chamber amicus brief supports the “significant purpose” test for dual purpose communications because it reflects the day-to-day realities that attorneys, particularly in-house counsel, face in their client communications. As the brief recognizes, “Today, in-house counsel perform numerous legal functions within businesses. Mixed in with those legal roles are often various roles with legal overlays regarding compliance, risk control, human resources, and government affairs.”
“It is paramount that in-house counsel can rely on clearly defined protections of attorney-client privilege that reflect the realities of today to most effectively serve their clients,” said Veta T. Richardson, president & CEO of ACC. “I am grateful the U.S. Supreme Court is taking this case. I hope they take this opportunity to send a clear signal, both domestically and internationally, of the fundamental importance of comprehensive attorney-client privilege for in-house counsel just as all other counsel depend on to advise their clients.”
The brief provides the Court with a wide range of situations where lack of clarity on the bounds of attorney-client privilege hamper in-house counsel in providing legal services to their businesses. From internal investigations to press releases, in-house counsel are tasked with navigating legal and business problems. Lawyers and clients require certainty and predictability when it comes to privileged communications. As ACC and the U.S. Chamber say in their brief, “The notion that discussing one business topic too many, or for too long, would rob legal advice of privilege would compel lawyers and clients to segregate their conversations and censor themselves. And the costs of those practices would be that clients receive worse advice and meet their legal obligations less frequently and ably.”
The Supreme Court will hear oral argument on this case on January 9, and a decision is expected by July 2023.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 45,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on LinkedIn, Twitter, and Facebook.