The US Supreme Court will consider the scope of attorney-client privilege in a case that attorneys say could impact every in-house counsel and the outside lawyers who support them.
The question for the justices at argument on Monday in In re Grand Jury is what test courts should apply to determine whether “dual-purpose” communications—those that contain both legal and business advice—should be shielded by the privilege.
The federal government is alone in advocating for a narrower understanding of the privilege while groups representing specialties as varied as intellectual property and tax attorneys argue a broader one is necessary to capture the real world role of in-house counsel. During Monday’s arguments, the justices indicated they were likely to fall somewhere in between the two positions.
But all seem to agree that a predictable test is necessary to ensure candid communications between attorneys and their clients. The test has to be clear, “not just for courts looking at the issue in retrospect, but for lawyers working on the job,” said Lawrence S. Ebner, executive vice president and general counsel of the Atlantic Legal Foundation.
Ebner is one of the several amicus who wrote a friend-of-the-court briefs in favor of a broader understanding of the privilege. Though unusual, such lopsided amicus support makes sense in this instance.
The case involves a criminal investigation of an unnamed company and grand jury subpoenas issued to both the company and its law firm. At issue, is advice the law firm, which specializes in international tax issues, provided to the company about “particularly novel” issues like the ownership of cryptocurrency, according to the brief filed by the unnamed firm.
Federal prosecutors are trying to get more information handed over in discovery.
“To facilitate criminal investigations and prosecutions, the Justice Department wants the scope of