In a one-line order issued last week, the Supreme Court dismissed In Re Grand Jury, No. 21-1397, one of the most significant cases about the attorney-client privilege in decades. The dismissal came just two weeks after oral argument. The Court explained that the writ of certiorari had been “improvidently granted,” meaning the Court should not have agreed to hear the case.
In re Grand Jury invited the Court to address the recurring question of how the attorney-client privilege applies when a client confers with a lawyer and receives both legal and non-legal advice. The case came to the Court after the Ninth Circuit ordered an unnamed law firm to comply with a grand jury subpoena for documents related to its advice on a client’s taxes. The Ninth Circuit concluded that the attorney-client privilege did not attach because legal advice was not the “primary purpose” of the communication.
The “primary purpose” test applied by the Ninth Circuit reflects the approach that a majority of courts take in determining the scope of the attorney-client privilege. In Re Grand Jury provided the Court the opportunity to endorse a broader and clearer test used by a smaller group of courts including the D.C. Circuit, which asks whether receiving legal advice was at least one “significant purpose” of the communication. The latter test would more clearly protect attorneys’ communications with their clients on complex matters involving both legal and non-legal advice.
Although the Court did not explain its reasons for dismissal, the Justices could have concluded that the facts of the case—which involved a confidential grand jury proceeding—offered a poor vehicle for addressing the issue. Alternatively, the Court may have been frustrated by how the parties shifted their arguments over the course of briefing. But a dismissal does not necessarily indicate that the Court will decline to weigh in on the “primary purpose” v. “significant purpose” debate in the future. After all, the original decision to hear the case suggests an interest in the issue. In the meantime, it remains important to be aware of the limits of the attorney-client privilege as applied to dual-purpose communications, and how that answer may change depending on the governing law.