The U.S. Supreme Court heard oral arguments Jan. 9 in a case about the scope of attorney-client privilege when there are "dual-purpose communications"—discussions that are partly about legal matters and partly about business.
Once issued, the court's decision "could be incredibly important to employers and HR professionals," said Richard Kiely, an attorney with Holland & Hart in Denver and Jackson, Wyo.
Some of the examples referenced in the oral arguments were communications about settling claims against a company; internal investigations conducted by in-house counsel, such as employment-related investigations; and even the common situation when an attorney might sit in on a business meeting simply to observe and listen for potential legal issues, Kiely noted.
In addition, this issue comes up frequently in the context of tax advice, where the lawyer's advice might include both a legal analysis of the tax code along with nonprivileged tax preparation or business-specific considerations. The dispute underlying this case, In re Grand Jury, itself arose in the context of tax advice.
Issue in the Case
The issue in In re Grand Jury is when are dual-purpose business and legal communications protected by the attorney-client privilege and when are they not, explained Mary-Christine "M.C." Sungaila, an attorney with Buchalter in Irvine, Calif., and San Diego. The court will address the following question: Should the privilege encompass communications where the client's single...
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