The U.S. Supreme Court has agreed to review a case to clarify the scope of attorney-client privilege in the context of dual-purpose communications. In re: Grand Jury, No. 21-1397.
The Court will consider which of two competing standards to apply when determining whether attorney-client privilege protects communications that incorporate both legal and non-legal or business advice.
“Attorney-client privilege” protects certain communications between attorneys and clients from disclosure. The Court extolled the importance of the rule in 1981, when it last addressed attorney-client privilege in Upjohn Co. v. United States, 449 U.S. 383. The Court explained that the purpose of the privilege “is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” The Court continued, “The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.”
When and how attorney-client privilege attaches is murkier when the communications are “dual-purpose,” involving both legal and non-legal advice. Dual-purpose communications occur often between in-house counsel and internal stakeholders or when law firms provide both business and legal services to clients. The facts of In re: Grand Jury center on the latter...
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