The privileged nature of the advice and counsel of employment lawyers must not be taken for granted, and it is hoped that the court's ruling in 'In re Grand Jury' will clarify and provide clear guidelines regarding the privilege's application to counsel's activities.
Employment lawyers spend their days consulting with their clients, guiding them through troublesome human resources issues, recommending disciplinary approaches, drafting performance improvement plans, drafting scripts for meetings between lawyers and their clients, and providing other assistance in the hope of avoiding legal difficulties and employment litigation.
Clients and their lawyers reasonably expect that this advice is protected by the attorney-client privilege or the work product doctrine. Itis provided in response to requests for legal advice in scenarios that may well pose significant legal risk.
But how reasonable is the expectation that the advice is privileged? The issue may receive helpful clarity from the U.S. Supreme Court, which recently accepted for review, in light of a split in the circuits, the issue of whether and when “dual-purpose communications” are protected by the attorney- client privilege.
In In re Grand Jury, 23 F.4th 1088 (9th Cir.), cert. granted, —S. Ct. —-, 2022 WL 4651237 (2022), the U.S. Court of Appeals for the Ninth Circuit observed, “[g]iven our increasingly complex regulatory landscape, attorneys often wear dual hats, serving as both a lawyer and a trusted business...
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