SCOTUS Punts An Important Legal Ethics Controversy

In the Supreme Court case In Re Grand Jury, the government had been trying to obtain  documents from an unnamed law firm specializing in international tax law. The documents were needed to investigate the law firm’s client. A judge held the law firm in contempt for failing to turn over disputed documents, and the 9th U.S. Circuit Court of Appeals at San Francisco affirmed in 2021. The issue was what test courts should apply when considering whether to protect “dual-purpose” documents that contain both legal and nonlegal advice.  The 9th Circuit ruled that courts should look to the “primary purpose” of a communication when it involves both legal and nonlegal analysis. Documents may be privileged when the primary purpose is to provide a client with legal advice. The firm argued that the entire document, along with any non-legal advice and material in it, should be considered privileged if legal advice was one of the “significant purposes” of the communication.

The legal ethics traditions argue for the more expansive standard. ABA Model Rule of Professional Conduct 2.1, “Advisor,states in part,

“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation….Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”

I agree with this approach. Requiring a client or an attorney to parse a letter or oral discussion to separate the legal, privileged content from the rest would chill effective lawyer client communication.Even though the case had been argued before the Court, today the justices ruled that “cert was improvidently granted,” and there would be no decision. Some predicted this result. During the January 6 oral arguments, Justice Gorsuch suggested that “primary purpose” and “significant purpose” seemed awfully similar.

SCOTUSblog notes that when the Court punts a case it has already accepted, the likely reasons are…

• The Supreme Court discovers after the cert grant that the case is not a strong precedent for resolving the issue before it.

• The justices suspect a “bait-and-switch” because petitioners have relied on different positions in briefing and oral argument than they did in the cert petition.

• The Court is fractured and thinks ducking the case is more responsible than issuing an opinion that confuses everyone.

The law and legal ethics often are on different planets, and judges too often measure legal ethics by judicial ethics standard, which are very different.

I was relieved to see the Court back off.



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