Dual-Purpose Communications and the Modern Attorney's Need for Circuit Court Uniformity

Authors

Kipp Garrett

Document Type

Note

Abstract

(Excerpt)

In January 2023, the Supreme Court of the United States heard oral arguments in In re Grand Jury regarding the proper and applicable test to determine whether attorney-client privilege can be invoked in dual-purpose communications between a business and its legal counsel. Attorneys across the country were hoping the Court would provide an answer, ending the three-way circuit split concerning the appropriate test. Unfortunately, the Court ultimately dismissed certiorari as “improvidently granted” without an explanation. As a result, there are three major tests that federal courts use to decide whether communications between businesses and their legal counsel are protected: (1) the “primary purpose” test used by the Second, Fifth, Sixth, and Ninth Circuits; (2) the dual-purpose test used by the Seventh Circuit; and (3) the significant purpose test used by the D.C. Circuit and other district courts. This Note will argue why all courts should adopt the primary purpose test when addressing dual-purpose communications.

Part I of this Note will examine the background of the attorney-client privilege as it relates to businesses and their legal counsel. Part II will address the various tests used by the circuit courts, along with an analysis of the benefits and shortcomings of each test. This part will also analyze relevant case law from the Seventh and D.C. Circuits, such as United States v. Frederick and In re Kellogg Brown & Root, Inc., which led them to deviate from the primary purpose test. Part III will address In re Grand Jury itself. This part will include an analysis of the Ninth Circuit’s opinion, the oral arguments made before the Supreme Court, and the possible reasoning behind the Court’s dismissal of certiorari.

Part IV will argue why all federal courts should adopt the “primary purpose” test. It will address why the test is superior to its alternatives and how such a test would benefit businesses and their legal counsel.