Supreme Court Decision Impact on Attorney Client Privilege

In re Grand Jury, a case intently watched by attorneys and in-house counsel, had the potential to basically alter the scope of the legal professional consumer privilege, which protects from disclosure to 3rd events sure communications between an legal professional and their consumer that relate to authorized recommendation. However the Supreme Court docket had different plans. In a single sentence, the justices dismissed the case on the bottom that it had been “improvidently granted,” and declined to deal with the scope of privilege within the context of dual-purpose communications. Why did this case command the eye of in-house counsel and attorneys for corporations? As a result of it delivered to the fore a standard query that these stakeholders ask themselves regularly: when is a communication that gives each enterprise and authorized recommendation protected by the attorney-client privilege?

A quick primer right here is useful. Twin-purpose communications, because the title suggests, are these delivered with each a enterprise and authorized function. Untangling the authorized from the enterprise portion of those communications is a tough (if not usually an inconceivable) activity. In such circumstances, courts are sometimes requested to think about whether or not and to what extent the attorney-client privilege covers the whole communication. To take action, most courts make use of both the “main function” take a look at, the place such a communication is privileged if its “main function” is to offer authorized recommendation, or the “vital function” take a look at, below which a communication is privileged if one of many vital functions of the communication was to acquire authorized recommendation. No matter which take a look at is utilized, figuring out whether or not a dual-purpose communication is privileged is a thorny subject.

Whereas the Supreme Court docket’s dismissal of In re Grand Jury leaves the established order in place, the choice and case offers us a possibility to revisit some finest practices that purchasers and attorneys is perhaps smart to think about when attempting to keep up privilege in all contexts, however particularly the place legal professional is able to provide each authorized and non-legal recommendation. Some notable concerns embody:

• Keep away from Comingling Authorized and Enterprise Recommendation. Because the excerpt from the article suggests, attorneys ought to endeavor to make sure that authorized recommendation is separate from enterprise or different types of recommendation. That mentioned, do not let excellent be the enemy of excellent. At instances, this will likely be inconceivable to perform, particularly as attorneys take a extra lively function in enterprise selections. Nonetheless, this is a crucial step attorneys and in-house counsel can take to keep away from privilege points.

• Construction Inner Investigations to Shield Privilege. In the course of the oral argument for In re Grand Jury, inside investigations have been mentioned because the “basic scenario” the place it’s onerous to disentangle the authorized from non-legal functions. Whereas unavoidable in sure circumstances, an organization can doubtlessly keep away from working head-first into the twin communication drawback by trying to exterior counsel to conduct inside investigations, which permits for a extra simple utility of attorney-client privilege to any communications between the exterior counsel and firm staff and/or in-house counsel. It additionally helps restrict the quantity and frequency of dual-purpose communications, particularly the place in-house counsel serves each authorized and enterprise features.

• Use “Privileged” Labels The place Applicable. Emphasis on “the place applicable.” Inappropriate labelling can lull individuals right into a false sense of safety and easily slapping “Lawyer-Consumer Privileged” on an e-mail or doc that’s decidedly not privileged is not going to prevent, nor will it remodel what’s clearly enterprise recommendation into privileged recommendation. Nonetheless, it is a good beginning place and positively a finest follow. 

• Legal professionals are the Gatekeepers of Privilege.  Whereas non-legal company stakeholders needs to be conscious or privilege concerns, the attorneys are in the end the gatekeepers.  It’s incumbent upon counsel to make sure that written communications are cabined solely to these people to whom counsel is offering recommendation; conversely, for conferences, counsel ought to have the ability to establish precisely why every particular person is within the room or on the decision to make sure that the recommendation stays protected by attorney-client privilege and isn’t disseminated to a wider viewers than vital.

These are however just a few concerns that key stakeholders would possibly need to revisit within the wake of In re Grand Jury.  And whereas the Supreme Court docket failed to offer a unified or bright-line strategy right now, understanding that the established order will now stay for the foreseeable future offers a minimum of some steerage for in-house and exterior counsel to comply with in navigating the more and more advanced world of attorney-client privilege.

Extra essential for in-house attorneys and compliance professionals is, at any time when attainable, to separate enterprise and authorized recommendation. At a minimal, it’s essential to obviously establish authorized recommendation and privileged supplies in conditions the place enterprise and authorized recommendation intertwine.

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