Not All Attorney-Client Communications are Privileged
The attorney-client privilege is at the center of the attorney-client relationship and for good reason. It gives clients a safe space to talk about their legal issues with their attorney. But as we all know, clients don’t always talk just about legal issues. Sometimes they’re just chatting away about current events or seeking business advice that is not legal in nature. Is all of that covered by the attorney-client privilege? Well, no.
The general rule is that confidential communications between a client and attorney are privileged when the purpose of the communications is about seeking legal advice. When communications serve dual purposes—i.e., both a legal and non-legal purpose—it can get a bit fuzzy about whether and to what extent the privilege applies to the communication.
The Ninth Circuit has adopted the “primary purpose” test. See In re Grand Jury, 13 F.4th 710 (9th Cir. 2021). Under this test, a dual-purpose communication is privileged if the legal purpose predominates. The Second, Fifth and Sixth Circuits have also adopted this test. The D.C. Circuit, on the other hand, has adopted a “significant purpose” test. See In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014). Under this test, a dual-purpose communication is privileged as long as a significant purpose of the communication was to seek or communicate legal advice. In theory, the “significant purpose” test should protect more communications than the “primary purpose” test.
In In re Grand Jury, a law firm sought to preclude documents that included legal and tax advice from production in response to a grand jury subpoena. The law firm urged the district court to apply the “significant purpose” test but it declined to do so; rather, it ordered production of the documents subject to redactions of any legal advice. On appeal, the Ninth Circuit affirmed the district court’s application of the “primary purpose” test. The law firm’s petition for certiorari seeking to adopt the “significant purpose” test was granted by the U.S. Supreme Court. Unfortunately for the law firm, the Court dismissed the case after oral argument and without any explanation. Justice Kagan’s comment during oral argument that “if it ain’t broke, don’t fix it” probably explains the Court’s thinking to a certain degree.
What does this mean for you and your clients? It means that dual-purpose attorney-client communications should be treated with care. In the Ninth Circuit, in particular, expect courts to be reluctant about treating an entire document as privileged if only a small part includes or relates to legal advice. Consider keeping communications pertaining to legal advice separate from non-legal advice. While this may not be ideal, it may make privilege reviews less cumbersome and could make claiming privilege a bit easier.