On  Monday, January 23, 2023, the United States Supreme Court (SCOTUS) dismissed In re Grand Jury, a case it had earlier agreed to review. Hawaii Employers Council previously wrote about this case in a November, 2022 article, Employers Beware: Limitations on Attorney-Client Privilege.

Background

The case involved a criminal investigation into an unnamed company and its law firm, during which a grand jury issued subpoenas requesting documents and communications relating to the investigation. The company and law firm cited attorney-client privilege over some documents, and refused to produce those documents. The district court held that the documents were not protected, and held the company and law firm in contempt.

The company and law firm appealed the district court's ruling to the Ninth Circuit. The Ninth Circuit agreed with the district court. The main issue revolved around whether attorney-client communications that serve more the one purpose (i.e., to provide business advice and legal advice) are protected by attorney-client privilege.

The Ninth Circuit held that, in the context of attorney-client privilege for dual-purpose communications, the primary-purpose test applies. This means that attorney-client privilege only applies to communications made with the primary purpose of obtaining legal advice. The court reasoned, citing precedent from SCOTUS, that the privilege is intended to protect “only those disclosures necessary to obtain informed legal advice which might have been made absent the privilege.” Therefore, according to the Ninth Circuit, the mere fact that a communication may also include some legal purpose does not entitle it to be shielded by attorney-client privilege if it was not the primary purpose of the communication.

SCOTUS Ruling

After hearing oral arguments earlier this month, SCOTUS issued a one-sentence order: “The writ of certiorari is dismissed as improvidently granted,” commonly referred to as “DIG.” SCOTUSblog explains that DIGs occur mostly in three circumstances:

1. When the Court discovers something after agreeing to take up the case that makes the case a poor vehicle for resolving the question it intended to answer;
2. When Court perceives that one or more of the parties are relying on a different argument than initially presented (though rare); and
3. When it appears the Court is unable to reach a consensus, and opts to issue a DIG rather than trying to issue an opinion with no controlling rationale.

When DIGs are issued, SCOTUS rarely provides an explanation as to its reasoning, as seen in this case.

Takeaway

Since SCOTUS declined to issue an answer to the question, "Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication," employers in Hawaii should continue to follow the Ninth Circuit’s primary purpose test.

Employers should consult their legal counsel with any questions or concerns regarding their communications. For tips and reminders when engaging legal counsel, including further explanation of the Ninth Circuit's primary purpose test, see our previous article on this topic.