Docket Check Update: US Supreme Court Declines to Decide Whether Attorney-Client Privilege Protects Dual-Purpose Communications

January 25, 2023 | Insights

By Jennifer S. FreelMichael J. Murtha

The U.S. Supreme Court decided on January 23, 2023, in a per curiam slip opinion that it would not consider whether communications including both legal and non-legal advice are protected by attorney-client privilege.

The Court originally decided to consider whether these “dual-purpose communications” are protected on October 3, 2022, after it took a case concerning an undisclosed law firm’s tax advice to a company under criminal investigation. When the firm received a grand jury subpoena demanding documents concerning the ongoing criminal investigation, the firm partially objected, citing the attorney-client privilege and work product doctrine. The District Court subsequently held the firm in contempt for refusing to produce the relevant documents. On appeal, the Ninth Circuit split with the D.C. Circuit and Seventh Circuit and affirmed the District Court, holding that a dual-purpose communication is privileged if the primary purpose of the communication was to obtain legal advice, as opposed to business or tax advice.

The Supreme Court was originally set to weigh in on this significant issue, but now it has decided that the writ of certiorari was “improvidently granted.”

The Court has issued only one opinion this term. The Jackson Walker team is continuing to monitor the cases we covered in our Docket Check and will let you know how and why the Court rules on these important matters.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions related to the case mentioned above, please contact Jennifer FreelMichael Murtha, or a member of the Investigations & White Collar Defense practice.

Jennifer FreelMeet Jennifer

Jennifer S. Freel is a partner in the Investigations & White Collar Defense practice of Jackson Walker’s Austin office. A former federal prosecutor, Jennifer advises businesses and individuals under investigation by the government and conducts internal investigations for companies seeking an independent party. She also represents clients in civil disputes at the pre-trial, trial, and appellate levels in state and federal court. She is an elected Fellow of the Texas Bar Foundation, a member of the Texas Supreme Court Historical Society’s Board of Trustees, a past chair of the Criminal Law Section of the Federal Bar Association, and a past president of the Austin Chapter of the Federal Bar Association.​​​​ She has been ranked among the top Texas attorneys for Litigation: White-Collar Crime & Government Investigations by Chambers USA: America’s Leading Lawyers for Business since 2021, and was named among The Best Lawyers in America for Criminal Defense: White Collar (Austin) in 2022.

Michael MurthaMeet Michael

Michael J. Murtha is an attorney in the Trial & Appellate Litigation and Investigations & White Collar Defense practices of Jackson Walker’s Dallas office. A former federal clerk, Michael is experienced in legal drafting, courtroom hearings, complex commercial litigation, and white collar defense. Prior to Jackson Walker, Michael served as a judicial law clerk to the Honorable Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit and to the Honorable Amos L. Mazzant, III of the U.S. District Court for the Eastern District of Texas. He also previously served as a law clerk in the Texas Office of the Solicitor General and advised Texas Senator John Cornyn’s office during the confirmation of Justice Amy Coney Barrett.