The Future of Attorney-Client Privilege and ‘In Re Grand Jury’

By Riley Frank, Staff Writer

Photo courtesy of

On January 23, 2022, the Supreme Court dismissed certiorari for In Re Grand Jury, a U.S. Court of Appeals for the 9th Circuit case dealing with attorney-client privilege.[1] The case involved two parties, both of which were unnamed.[2] Petitioner, “Law Firm,” was served with subpoenas requesting documents in the criminal investigation of its client, “Company.”[3] The issue in the case arose when Law Firm withheld requested documents on the basis of attorney-client privilege and the work-product doctrine, claiming that the documents served a dual purpose, both to prepare Company’s tax returns and provide Company with legal advice. [4]

Following Law Firm’s refusal, the government moved to compel production of the documents Law Firm sought to withhold—the district court granted this motion.[5] However, Company and Law Firm continued to refuse to produce the documents and were then held in contempt by the District Court, with the U.S. Court of Appeals for the Ninth Circuit affirming. [6] The U.S. Supreme Court heard the case on October 3, 2022.[7]

The question presented by petitioner was whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication. According to the U.S. Court of Appeals, Law Firm and Company had argued that the District Court’s main error in deciding the documents were not covered by attorney-client privilege was the test utilized. [8] The District Court used the “primary purpose test” as opposed to Appellant’s broader, preferred approach, which was to determine whether the legal advice served a significant purpose.[9]

The primary purpose test asks whether legal advice was the client’s primary purpose, but Daniel Levin, a representative for Law Firm, argued to the Court that a bona fide version of the test would create more ease in applying the privilege.[10] According to Levin’s interpretation of the test, a client’s  good-faith claim that the purpose of a communication was at least in part legal advice, would prevail and it would be much easier to privilege vast amounts of information simply by adding a lawyer to an email or meeting.

However, the Justices focused primarily on the fact that a different test would create more issues for the privilege. For instance, even if nonlegal advice within a transaction far exceeded the legal advice, the entire transaction would qualify as privileged.[11] This seems at odds with the principle of attorney client-privilege, as it creates increased secrecy over aspects of communications between attorneys and their clients that otherwise would not be protected by the privilege.

Justice Ketanji Brown Jackson presented a hypothetical of a business meeting. While everyone agrees that the meeting is over a business decision, an attorney present at the meeting adds a point.[12] Under Levin’s interpretation of the future of the primary purpose test, the entire meeting would then become privileged.[13] This, as Justice Brown Jackson posited, would simply be shifting from one extreme to another.[14]

While there was some debate over how exactly to continue to apply the primary purpose test, the consensus was that the Court should continue to define the privilege according to the Federal Rules of Evidence.[15] Ultimately, the Court denied the writ of certiorari on In Re Grand Jury.[16] While there will most likely continue to be debate over which approach is best, attorney-client privilege remains unchanged for the moment, and the “lawyer in the room” hypothetical remains a hypothetical.


[2] Id.


[4] Id.

[5] ttps://

[6] Id.


[8] Id.

[9] Id.


[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.


Comments are closed.