A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury



After the oral argument in In re Grand Jury, the smart money would have predicted either that the court would affirm the U.S. Court of Appeals for the 9th Circuit or dismiss the case as improvidently granted. On Monday, it dismissed. In fact, one might be left wondering why the court agreed to hear the case in the first place. Yet the dismissal – known as a “DIG” – does not mean that the court has lost interest in the issue raised, only that the facts of the case were not the right vehicle for exploring it.

The case invited the court to answer a simple but recurrent question: When a client confers with a lawyer and receives both legal and nonlegal advice, and the nonlegal advice cannot be disentangled from the legal advice, does the attorney-client privilege protect all of the advice or none of it? State and federal courts for decades have said that the answer depends on whether the legal advice was the client’s primary purpose for consulting a lawyer.

Trial judges, who have to make these decisions in the first instance, do not seem to have protested that they are too hard. But the petitioner in this case – an unnamed law firm that was challenging a federal grand jury’s subpoena for client communications – argued they were both hard and unpredictable. For the privilege to do its job, the law firm argued, predictability is necessary.

The law firm first urged that the primary-purpose test should be replaced by asking if legal advice was a client’s “significant purpose” for the consultation. But that test also carries an unpredictability risk. So in its reply brief and at oral argument, the law firm modified its test to ask whether legal advice was a “bona fide” purpose, presumably even if not a significant one, for consulting counsel. Justice Elena Kagan correctly characterized the law firm’s position as “a big ask.” One might also call it a solution in search of a problem.

Either of the law firm’s substitute tests would have expanded the reach of the privilege, which explains why 13 amicus briefs from lawyer and business organizations, including the American Bar Association and the Chamber of Commerce, supported the law firm. It is they, not small clients, who would benefit from an expanded privilege. No amicus briefs supported the government, which urged the court to retain the primary-purpose test.

The court’s questions did not reveal a left/right division. This is likely because unlike much of the court’s business these days, the attorney-client privilege is not politically or socially controversial. It is what we might call a “lawyer’s issue,” about the profession itself, and the justices’ experience in law practice varies.

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.

Chief Justice John Roberts asked about an accountant who completes a complicated tax form. His work would not be privileged. But then the form is shown to a lawyer who identifies three items that are “kind of iffy” and bills $200,000. Would it all then be privileged? “To me,” Daniel Levin, the law firm’s counsel, replied, “that’s … clearly privileged,” which prompted Justice Clarence Thomas to ask: “Is there any non-trivial role that a lawyer plays in the example the chief gave that doesn’t meet your test?”

Only if the lawyer’s task “would be mechanical tax prep,” Levin said.

An exchange with Justice Ketanji Brown Jackson led to an unforced error. Jackson described a meeting that everyone agrees is over “a business decision … but the lawyer [in the room] adds a point. And you say, as long as it’s a legitimate point, that is good enough to require that the entire thing be privileged. … Why shouldn’t I worry that using your test now, we are going from one extreme to the other?”

Levin replied “I don’t think that’s going to happen” and noted that it had not happened in the case now before the court. But Jackson observed that the case arose under the rule that Levin was asking the court to displace.

The absence of the kind of disagreements we have become accustomed to see from the justices leaves one to wonder why the court did not simply write an opinion affirming the 9th Circuit. This is where the decision dismissing the appeal may carry future implications. The easy explanation is that the record, much of it shrouded in grand-jury secrecy, was not the right vehicle to permit the court to address the weighty question presented, whatever the answer. That is, there were not enough public-record facts to avoid an abstract treatment of the question. The more abstract, the less helpful to trial judges.

But there is another explanation. It is that a majority of the court wants to save the issue for a case whose public facts permit a serious evaluation of a question whose answer can expand secrecy and greatly affect the administration of justice. In other words, don’t read anything about the justices’ views into the dismissal. After all, they took the case in the first place, which signals an interest in the subject. They may simply have misread the case as cert-worthy.

A reversal could have led to denying the government documents relevant to its investigation of a grand-jury target even though those documents would not have been privileged but for the fact that the target’s consultation with counsel included incidental legal advice. What the dismissal tells us is that the court was not prepared to say, at this point and on this record, whether that would have been a just result in light of “reason and experience,” which is the standard in Federal Rule of Evidence 501 for defining privileges.

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