As workplace issues have become more complex, human resource professionals and managers often turn to employment lawyers for advice in sorting out matters involving the interaction between business requirements and the requirements of employment laws and regulations. When is such advice protected from disclosure under the attorney-client privilege?
When the U.S. Supreme Court agreed to hear In re Grand Jury, employer organizations were anticipating the Court would provide clear guidance on the issue and sort out the conflict between the federal appellate courts on whether and when “dual-purpose communications,” which include both legal and business advice, are protected by the attorney-client privilege. The case involved an appeal of the Ninth Circuit’s decision applying the “primary purpose” test to determine whether a communication is privileged. That test, which was also applied by the Second, Fifth and Sixth Circuits, “does not reflect the modern role that lawyers play in advising businesses,” the U.S. Chamber of Commerce argued in its brief. “[B]ecause the line between the business purpose and a legal purpose is blurry,” the Chamber argued, the primary purpose test is often “inherently impossible” to apply and therefore “bound to yield arbitrary and unpredictable results.”
In an opinion written by Justice Brett Kavanaugh when he was a federal appellate court judge, the U.S. Court of Appeals for the D.C. Circuit had adopted the broader “significant purpose” test when...
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