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One to Keep An Eye On: In re Grand Jury (United States Supreme Court)


As with many labor & employment law related cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


On October 6th, the United States Supreme Court granted a petition to hear an appeal of the In re Grand Jury case from the Ninth Circuit.  This particular case asks the Court to consider the standard that governs the attorney-client privilege in “dual purpose” communications.  For the context of this case, “dual purpose” communications include when communications are made for both legal and non legal advice.

The Ninth Circuit has joined with the Fifth Circuit to hold that the “primary purpose” test governs the analysis.  Under this test, it is up for a court to determine if the primary purpose of the communication is to provide legal advice.  If this is found to be the case, the communication is protected by the attorney client privilege and protected from disclosure.  If this is not found to be the case, the privilege does not apply and the entire communication is subject to disclosure.

However, the D.C. Court of Appeals has held that a dual purpose communication can fall under the attorney-client privilege so long as legal advice presents a significant purpose for the communication, even if it is not the primary purpose.  (Notably, Justice Kavanaugh was on the bench in 2014 when the D.C. Court of Appeals issued that ruling.)

Readers might consider the “primary purpose” test and the “significant purpose” test to be nearly identical.  While a 30,000 foot view of the matter might lead you to this conclusion, the D.C. Court’s test is more expansive while the “primary purpose” test has been considered to be too uncertain (given that many attorneys provide clients with both legal and business advice in communications.)

Oral arguments are set for January 9, 2023.


For additional information:  https://www.scotusblog.com/case-files/cases/in-re-grand-jury/

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