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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.

Continue Reading Supreme Court Weighs Whether “Dual Purpose” Communications Are Privileged in In re Grand Jury

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When assessing whether a contractor is eligible for award, contracting officers are required to conduct a meaningful present responsibility determination using the factors contained in FAR 9.1. However, a final rule issued by the FAR Council on September 30, 2016 has inserted a wild card into the process—the agency suspension and debarment official (SDO).

The final rule adopts an interim rule without change, which amends the FAR to establish the following representation and certification requirements:

  • Representation (FAR 52.209-11): Any corporation responding to a federal solicitation must represent whether it: (1) has any unpaid federal tax liability that has been assessed and is not being appealed or paid in a timely manner; or (2) has a felony conviction for a violation under any federal law within the preceding 24 months. There is no de minimus amount for reporting tax delinquencies. Consistent with the Consolidated and Further Continuing Appropriation Acts, an affirmative response to either prong would create an automatic exclusion that precludes the award of federal contracts in a “shoot first, ask questions later” fashion.
  • Certification (FAR 52.209-12): Corporate offerors must certify to tax matters contained in FAR 52.209-12(b) when responding to certain solicitations where the resultant contract (including options) may have a value greater than $5 million. If applicable, contractors must ensure that their certifications are accurate; otherwise additional liability could arise for the submission of false statements.


Continue Reading Tough (Tax) Break: Federal Tax Delinquency and Felony Convictions Could Bar Corporations from Contract Award