"The U.S. Supreme Court has dismissed an attorney-client privilege case two weeks after hearing oral arguments.
At issue was what test courts should apply when considering whether to protect “dual-purpose” documents that contain legal and nonlegal advice. An unnamed law firm specializing in international tax law was fighting disclosure of dual-purpose documents sought by the government in an investigation of a client.
A judge held the law firm in contempt for failing to turn over disputed documents, and the 9th U.S. Circuit Court of Appeals at San Francisco affirmed in 2021.
The 9th Circuit ruled that courts should look to the “primary purpose” of a communication when it involves legal and nonlegal analysis. Documents may be privileged when the primary purpose was to obtain legal advice.
The 9th Circuit rejected a more expansive test advanced by the firm that protects documents if obtaining legal advice was one of the “significant purposes” of the communication.
The ABA had supported the firm in an amicus brief. The federal government backed the “primary purpose” test.
This article was originally posted in the ABA Journal.
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