ABA Seeks to Protect Attorney-Client Privilege from Possible Erosion in Supreme Court Brief

The American Bar Association has filed an Amicus curiae brief in the case In re Grand Jury looking to defend attorney-client privilege from a narrow and restrictive limitation.[1] The case stems from a Grand Jury subpoenaing a law firm for tax returns.[2] The firm, which specializes in international taxes, declined to provide certain documents, claiming that their communications were shielded due to the presence of legal advice.[3] The Grand jury was investigating one of their clients. The 9th Circuit, in hearing the case, established a “primary purpose” standard, meaning that communications are only shielded if their primary purpose is to provide legal advice.[4] In their brief to the Supreme Court, the ABA stated that “many such communications are “mixed” in purpose, and parsing them to determine the ‘significance’ of various client purposes is uncertain at best, and unnecessary.”[5] The ABA claims the standard is unworkable and not practical. Instead, the Supreme Court should resist the urge to place any new restrictions on attorney-client privilege, especially when there already exist effective and longstanding exceptions to the rule.

Attorney-client privilege is not absolute; there are multiple exceptions, most notably the crime-fraud exception and exceptions for death, fiduciary duty, and common interest exceptions. The crime-fraud exception states that communications between an attorney and client that were used in perpetrating a crime are not shielded.[6] The death exception mostly surrounds the execution of an estate, meaning that certain information that may be necessary to carry out the wishes of the deceased client is not shielded.[7] This information could be the manner under which the client signed the will or by providing clarification about what clauses mean.[8] The fiduciary exception mostly deals with trusts and the trustee-beneficiary relationship.[9] In Riggs National Bank of Washington, D.C. v. Zimmer, the Court found that legal documents created for the benefit of the beneficiaries and not specifically for a trustee to defend themselves are not shielded from the beneficiaries.[10] The common interest exception is most prevalent in co-defendant cases where each defendant has retained the same attorney.[11] The privilege extends to all three parties and documents between the three are shielded from discovery.[12] Though these bedrock exceptions do not restrict attorney-client privilege, they do not undermine the basic foundation of the privilege. These exceptions do not deter or erode the importance of the privilege, save when it is necessary, like in the case of the crime-fraud exception, or it is practical, like the death exception.

In the case before the Supreme Court, attorneys for the unnamed law firm relied upon precedent within the DC Circuit Court, which provided a broader rule for attorney-client privilege. The case, In re Kellogg Brown & Root, Inc., set the significant purpose standard.[13] The decision, written by then-Circuit Judge Brett Kavanaugh, states that any communications where legal advice was a significant purpose were shielded, even if the communication in its entirety is not legal advice.[14] Though this appears to be a slight difference from the Ninth Circuit’s primary purpose standard, the implications of accepting such a narrower interpretation of attorney-client privilege would undermine the privilege’s very foundation. A client must have confidence that their communications with their attorney are confidential without needing to completely separate their business advice and legal advice, an impractical task. The ABA acknowledges this, stating that “[t]he unhealthy difficulties of a ‘primary-purpose’ test are real. It is common for clients to seek legal counsel in situations where legal purposes substantially overlap with business, regulatory compliance, and other not-exclusively-law-related purposes.” [15] Under the primary purpose standard, the Courts would need to sift through these communications and the subsequent layers of legal, business, and other forms of advice, seeking to find the main subject. That, the ABA argues, is impractical and unworkable. In addition, with the Kellogg standard, such a practice by the Courts would be unnecessary. Attorney-client privilege is essential to competent and effective legal counsel and the Supreme Court must proceed with caution and a keen awareness of the potential legal ramifications of limiting its scope. Ultimately, though this is a case about what the applicable standard should be, attorney-client privilege as it is today hangs in the balance, hence the importance of the ABA’s brief.