How Law Firms Should Respond to In Re Grand Jury

On October 3, 2022, the Supreme Court of the United States agreed to hear arguments in a case regarding one of the most fundamental and sacred tenets of being a lawyer—the attorney-client privilege. In Re Grand Jury, a decision from the Court of Appeals for the Ninth Circuit, came before the nine justices so they could address what communications are protected by the privilege.[i] How might the Supreme Court’s decision to review this case impact how lawyers communicate with clients, especially since the Court had not addressed a case involving attorney-client privilege since 1981?[ii] 

Brief Background on the Attorney-Client Privilege

Every law student—whether directly through courses like professional responsibility and legal ethics or indirectly in reading cases in Criminal Law (and many other courses in law school)—is exposed to and lectured on the importance of the attorney-client privilege. In short, it is the rule that “protects the confidentiality of communications between lawyers and clients.”[iii] Attorneys may not divulge, or be forced to divulge, information clients give them so that clients are encouraged to “openly share information with their lawyers and to let lawyers effectively represent their clients.”[iv] Notably, the privilege does not attach in certain situations: (1) when a third party is present who is not part of the attorney-client relationship, (2) when a client waives the privilege by divulging confidential information to someone who is not their attorney, and (3) when a client intends to commit or cover up a fraud or crime.[v]

Also, while the concepts are similar, the attorney-client privilege is different from the duty of confidentiality. Privilege generally is narrower in scope by covering only communications between a client and his/her attorney. The duty of confidentiality covers not only information that was revealed to the attorney by the client, but information that attorneys get from third parties.[vi] Further, confidentiality means everything regarding the representation of a client must be kept private.[vii]

What the Supreme Court Decided

Ultimately, on January 23, 2023, the Supreme Court dismissed In Re Grand Jury because certiorari was “improvidently granted.”[viii] This means the particular case was not the right situation for deciding the issue raised—whether the attorney-client privilege protects both legal and non-legal (including business-related) advice communicated by an attorney to a client in written materials that were subpoenaed by a grand jury.[ix] This left in place the lower court ruling under which, in dual-purpose communications—those in which both legal and non-legal advice are given—“most courts find privilege where the primary purpose of the communication was legal advice.”[x] (Some courts, including the D.C. Circuit Court, apply attorney-client privilege if a significant purpose of a communication seeks legal advice. This “significant purpose” standard favors lawyers and clients by protecting a broader range of communications.)[xi]

How Law Firms Should Proceed

Even though the Supreme Court opted not to decide the issue of how broadly or narrowly privilege should be applied to attorney-client communications, the fact that the issue came before it in the first place only brought more attention to questions about the extent of the privilege and what’s covered by it. As a result, lawyers and firms should consider the following safeguards, among others, in managing client communications:

• At the beginning of and throughout representation, explain the limits of privilege and how it might be waived. Regular and ongoing communication regarding privilege can clarify and potentially ward off any issues that arise.[xii]

• Determine whether written communication is necessary. Is there a way to share information with a client other than in writing?[xiii]
• Maintain certain documents in law firm files only, where possible.[xiv] Not only would this prevent clients from inadvertently waiving privilege covered by documents in their possession, if there is a question whether certain materials are protected by privilege, the attorney work product doctrine would protect anything prepared in anticipation of litigation.[xv]
• Attempt to separate legal advice from non-legal business communications. Clearly identify when you are providing legal advice, and document business advice separately. Failing to separate the two increases the risk of having to disclose all of it.[xvi]

• Clearly label documents containing legal advice as “Legal Advice” or “Attorney-Client Privileged,” when appropriate; further, be prepared to justify why it's privileged and confidential. Overusing labels may dilute the assertion of privilege or call into question whether the information actually is privileged.[xvii]
• Avoid email forwards and lengthy prior email chains that include non-relevant people. Make sure necessary information is shared only with necessary parties.[xviii]

To protect the sanctity of the attorney-client privilege, lawyers and firms should take all necessary precautions with how and what they communicate with clients—and should make sure clients do all they can to protect the privilege as well.

[i] Howe, A. (2022, October 3). Court agrees to hear nine new cases, including challenge to tech companies’ immunity under Section 230. SCOTUSblog. https://www.scotusblog.com/2022/10/court-agrees-to-hear-nine-new-cases-including-challenge-to-tech-companies-immunity-under-section-230/

[ii] Adler-Paindiris, S. and Satterfield, S. (2022, October 24). U.S. Supreme Court to Clarify Scope of Attorney-Client Privilege Issue. Jackson Lewis. https://www.jacksonlewis.com/publication/us-supreme-court-clarify-scope-attorney-client-privilege-issue

[iii] Schwartzbach, M. (n.d.). The Attorney-Client Privilege. Nolo. https://www.nolo.com/legal-encyclopedia/attorney-client-privilege.html

[iv] Ibid.

[v] Wong, B. (2022, November 10). What is attorney-client privilege? LegalZoom. https://www.legalzoom.com/articles/what-is-attorney-client-privilege

[vi] The Law Dictionary. (n.d.). Is There a Difference Between Attorney-Client Privilege and Confidentiality? https://thelawdictionary.org/article/difference-attorney-client-privilege-confidentiality/

[vii] Schwartzbach, M. The Attorney-Client Privilege.

[viii] In Re Grand Jury. 598 U.S. ___ (2023). https://www.supremecourt.gov/opinions/22pdf/21-1397_ap6b.pdf

[ix] Gillers, S. (2023, January 25). A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury. SCOTUSblog. https://www.scotusblog.com/2023/01/a-dig-on-attorney-client-privilege-why-the-court-decided-not-to-decide-in-re-grand-jury/

[x] Perdew, R. and Skundberg, J. (2023, January 25). In Re Grand Jury: U.S. Supreme Court Punts on How to Apply Attorney-Client Privilege to Dual-Purpose Communications. JD Supra. https://www.jdsupra.com/legalnews/in-re-grand-jury-u-s-supreme-court-7925403/

[xi] Ibid.

[xii] Combs, S. and Kiely, R. (2023, January 5). Fortify attorney-client privilege over dual-purpose communications before Supreme Court decides In re Grand Jury. Reuters. https://www.reuters.com/legal/legalindustry/fortify-attorney-client-privilege-over-dual-purpose-communications-before-2023-01-05/

[xiii] Ibid.

[xiv] Ginsburg, S. (2017, March 16). How to Lose Attorney-Client Privilege. American Bar Association. https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2017/how-to-lose-attorney-client-privilege/

[xv] Thomson Reuters. (n.d.). Work Product Doctrine. https://content.next.westlaw.com/practical-law/document/I03f4dac3eee311e28578f7ccc38dcbee/Work-Product-Doctrine

[xvi] Combs, S. and Kiely, R. Fortify attorney-client privilege over dual-purpose communications before Supreme Court decides In re Grand Jury.

[xvii] Ibid.

[xviii] Ibid.