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. Continue reading
Ethics Alarms 
There is a little more to it than that:-
– On the legal maxim of “nemo dat quod non habet”, of course the Turks couldn’t convey title. But they didn’t, they offered a quitclaim, as it were; they removed themselves from obstructing.
– As regards any original owners, there simply weren’t any left. The last remaining ones were ended by rounds of persecution of pagans, centuries earlier.
– As far as any generic claims of common heritage of western civilisation go, and those claims only go for want of better (there being no direct heirs), what better place to put the items than in a museum furthering that common heritage? Are the British somehow less heirs of that than are the Graeculi? Particularly considering how much safer the items were in that museum(those not taken have suffered horribly from war, corrosion, and what not). And, of course, the very word “museum” proclaims that furthering that common heritage.
Now, none of that conveys title to the British Museum, but adverse possession in the years since does – adverse, in that no better claimant came forward. Just as today’s Greeks feel an understandable connection to these items, as they do to the Lions of St. Mark’s, so too do today’s British – and as today’s Venetians do to the Lions of St. Mark’s. They are as intertwined with the histories of each place as of the other.
The Solomonic solution would be to sand blast the items to the condition of those not taken if any effort to transfer them were ever made. But I expect the Sir Humphreys will loudly assert ownership while underhandedly arranging a loan in name only with no means of foreclosing, just as they have with foundational documents that ought to have remained in British archives. That would satisfy none but the Sir Humphreys.
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