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On October 3, 2022, the U.S. Supreme Court agreed to hear an appeal in a major attorney‑client privilege case. The case involves when and how to apply the privilege to documents that have two or more purposes, in this instance materials addressing the provision of legal advice and the preparation of tax documents.
In the underlying court decision by the United States Court of Appeals for the Ninth Circuit, In re Grand Jury, No. 21-55085, et al., 23 F.4th 1088 (9th Cir. Sept. 13, 2021), the Ninth Circuit affirmed the underlying federal District Court’s orders holding the appellants, a company and a law firm, in contempt for failure to comply with grand jury subpoenas related to a criminal investigation. The District Court had ruled that certain dual-purpose communications were not attorney-client privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. The Ninth Circuit rejected appellants’ argument that the courts should apply a “because of” test for applying the privilege that some other courts have used. The Ninth Circuit left open, however, whether the “primary purpose” test should be framed in terms of “the primary purpose” or “a primary purpose” of the documents, a point as to which other courts have differed.
The Ninth Circuit opinion may be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/13/21-55085.pdf
The appellants’ Petition for a Writ of Certiorari (request that the U.S. Supreme Court hear the appeal) may be found here: https://www.supremecourt.gov/DocketPDF/21/21-1397/221600/20220421123354763_20220421-123022-95756360-00003407.pdf