Supreme Court Evaluates Scope of Attorney-Client Privilege
WASHINGTON — The Supreme Court debated the limits of the attorney-client privilege on Monday, struggling to articulate a standard that would protect confidential legal advice without shielding routine business communications.
The case before the justices, In re Grand Jury, No. 21-1397, was itself shrouded in secrecy. It involved a criminal investigation of an unnamed person described in court papers as “an early promoter of Bitcoin” who “expatriated from the United States in early 2014.”
After a grand jury sought records from an unnamed law firm hired to prepare that person’s tax returns, a federal judge ordered the firm to turn over documents that contained both legal advice and ordinary tax-return accounting unless the legal advice was the document’s “primary purpose.” The firm refused, saying that the documents should be protected so long as legal advice was a “substantial purpose” of the communication.
The judge held the firm in contempt, an appeals court agreed that the tougher “primary purpose” standard should apply, and the firm appealed to the Supreme Court, asking the justices to let it withhold documents in which legal advice played a subsidiary but significant role.
The more demanding standard has a long history, Justice Elena Kagan told a lawyer for the firm, Daniel B. Levin.
Understand the U.S. Supreme Court’s New Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court heard arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
“We’ve had the attorney-client privilege for a long time, and until 2014, nobody ever suggested that the test that you’re proposing is the right one,” she said. “Everybody instead used the primary purpose test.”
She added, “So this is a big ask.”
Later, Justice Kagan asked Mr. Levin to comment on “the ancient legal principle” of “if it ain’t broke, don’t fix it.”
Justice Sonia Sotomayor said Mr. Levin’s proposed test would protect too many communications. “If 1 percent of the purpose of this communication was to render legal advice,” she said, “the whole communication is suppressed.”
Mr. Levin acknowledged that the mere presence of a lawyer did not render communications privileged.
“Everybody agrees you can’t just copy a lawyer on a communication, you can’t just have a lawyer sit in the corner of a meeting,” he said, “and say the whole thing’s privileged.”
But when authentic legal advice was rendered, Mr. Levin said, disentangling a communication’s competing purposes and deciding which was the primary one was “an inherently impossible exercise.” Endorsing the tougher standard, he said, would make it hard for lawyers and their clients to predict whether their consultations would be protected.
Justice Sotomayor said that such predictions would remain hard no matter how the Supreme Court ruled on the scope of the privilege in federal proceedings.
“The vast majority of states use the primary purpose test,” she said, adding: “So how is this going to work? In federal court, we’re going to say you apply the significant test, and in state cases you apply the primary test?”
Masha G. Hansford, a lawyer for the federal government, asked the court to apply the privilege narrowly.
More on the U.S. Supreme Court
- Donors Meet the Justices: A charity was created to preserve Supreme Court history. It has also become a door to nine of America’s most powerful people.
- Title 42: The Supreme Court said that the pandemic-era policy that restricted migration at the southern border would remain in place for now, delaying the potential for a huge increase in unlawful crossings.
- Year-End Report: Chief Justice John G. Roberts Jr. devoted his annual report on the federal judiciary to threats to judges’ physical safety. The report shed no light on the leak of the court’s draft Roe opinion or on calls for more rigorous ethics rules for justices.
- An ‘Imperial Supreme Court’: Several new studies argue that the current court “has rapidly been accumulating power at the expense of every other part of the government,” Adam Liptak writes.
“The public has a right to every man’s evidence,” she said. “The attorney-client privilege creates an important but limited exception to that rule for communications seeking legal advice.”
Adopting the law firm’s position, she said, “would create an accountant-client privilege whenever a taxpayer can afford to hire an attorney to prepare his taxes.”
Chief Justice John G. Roberts Jr. said that requiring judges to determine a communication’s primary purpose was burdensome.
“I think it’s important to keep in mind what the judges have to do here, which is go through these documents,” he told Ms. Hansford, adding that “it seems to me that your approach really puts a lot of work on the judge.”
Justice Neil M. Gorsuch said both sides had shifted their positions during the litigation. The law firm, he said, had moved from calling for a significant purpose test to one that essentially protected any legitimate purpose. The government, he said, had moved from pressing the primary purpose test to saying that the privilege would apply in close cases.
“I’ll be honest,” Justice Gorsuch said. “I’m struggling this morning.”
