On January 9, 2023, the U.S. Supreme Court heard oral arguments in In re Grand Jury. In this case, the Court is asked to decide the appropriate test for determining whether documents that include legal advice, but also discuss other non-privileged issues, are protected by the attorney-client privilege. The question before the Court is whether a “dual purpose” communication is privileged only if its “primary purpose” was obtaining legal advice, or if the privilege extends to documents that have only a “significant purpose” of obtaining legal advice. While the case arose in a criminal context and relates to tax advice, the Court’s decision could have broad implications across the legal profession. The case has drawn an enormous amount of attention, as evidenced by the thirteen amici briefs filed in the case.
The case arose when a law firm specializing in international tax issues was ordered to turn over documents containing communications that discussed both the preparation of the client’s tax returns and legal advice. Communications solely involving preparation of a tax return are generally not privileged. The law firm claimed that because the communications had a “dual purpose” that included legal advice, they were protected by the attorney-client privilege and refused to produce them.