In Re Grand Jury - 11/23/22

Lawyers for Civil Justice urges the U.S. Supreme Court in In Re Grand Jury to adopt the “significant legal purpose” test for protection of attorney-client communications in dual purpose communications between attorneys and clients. In an amicus curiae brief filed with the Court, LCJ urges rejection of a “single purpose” test applied by the Ninth Circuit Court of Appeals and argues for the adoption of the “significant legal purpose” test put forward by the U.S. Court of Appeals for the District of Columbia. 

In Re Grand Jury raises the question of how to determine if dual-purpose communications are protected by the attorney-client privilege. LCJ argues that the DC Circuit’s significant legal purpose test for determining if the communication is protected is consistent with the purposes of the Federal Rules and the privilege itself. Adopting this test will: (1) establish uniformity as to privilege standards; (2) promote free and frank exchange of information between attorneys and their clients; and (3) reinforce the fundamental proposition that a protected communication does not lose its protection simply because it appears next to or is intermixed with other information. 

LCJ is concerned that not adopting this significant legal purpose test for the privilege will chill communications, thwart the purpose of the privilege and impose additional burdens on the parties and the courts in discovery.

The significant legal purpose tests does not expand the attorney-client privilege or shield discoverable materials from discovery. Notably, there is a substantial burden of proof required of any party asserting the privilege, with the party required to make a “clear showing” that the lawyer involved in the communication was acting “in a professional legal capacity” rather that exercising “responsibilities outside a lawyer’s sphere.

LCJ argues that the single purpose test applied by the Ninth Circuit is not practicable, will lead to needless costs and delay, and is inconsistent with the goals of the attorney-client privilege.

The amicus brief, authored by Jonathan Redgrave and Gareth Evans of Redgrave LLP, was filed on November 23, 2022, and is attached here.  The case was argued before the Supreme Court on January 9, 2023. The writ of certiorari was subsequently dismissed as improvidently granted in a January 23 order by the Supreme Court.