A recent U.S. Supreme Court case, In re Grand Jury, captured the attention of lawyers nationwide who hoped it would provide guidance on the application of attorney-client privilege to “mixed-purpose” communications between in-house counsel and their internal clients. Unfortunately, the Supreme Court dismissed certiorari without an explanation after hearing oral argument in January, leaving unresolved a split among federal circuit courts on the standard that applies to whether mixed communications are privileged.

The Fifth, Sixth and Ninth Circuits apply the “primary purpose” test, which protects lawyer-client communications only if the primary purpose of the communication was to obtain or provide legal advice. This test can be unpredictable and tricky to apply when a communication does not have a single primary purpose. In contrast, the D.C. Circuit extends the privilege to a communication if one of its significant purposes was to provide legal advice. The Supreme Court’s decision not to resolve the split leaves attorneys uncertain of which standard applies to mixed communications.

Best Practices for Mixed-Purpose Communications

Despite the lack of uniformity in tests across jurisdictions, in-house counsel should strive to cloak their communications under the primary purpose test, the more stringent standard. Communications privileged under the significant purpose test are protected under the primary purpose test, but not vice versa.

Here are some best practices that companies can adopt for communications seeking or giving legal advice:

• Educate clients and business teams about the distinction between business advice and legal advice and why, in view of this recent decision, the distinction matters.
• Use language that makes clear that the communication is primarily about a legal matter.
  • For example, use language such as “What are the legal implications of X” instead of “What are your thoughts on X?” or “Are we good to go on Y?”
  • Similarly, replies or follow-up communications can clarify the purpose of the communication (e.g., “Here’s my legal analysis on X”; “I did some legal research into Y”; “Thank you for providing the background on how X product/team operates – It helps inform the legal analysis on Z.”).
• Do not assume that merely cc’ing an attorney on an email will make it privileged. Rather, address the email directly to legal counsel. To whom the email is addressed does not determine whether the privilege applies, but addressing it to counsel, in connection with other factors, may weigh in favor of protecting the communication and demonstrate a primary legal purpose.
• Reduce the risk of privilege waivers by not forwarding sensitive communications beyond the legal team and those internal “clients” that need to receive it.
  • Add notations that signal a primary legal purpose, e.g., “attorney-client communication,” or “privileged and confidential.” Such notations are especially important for in-house counsel and could be included in the legal team’s signature block, when applicable.
• In the case of sensitive communications, do not commingle business and legal advice whenever possible, and make clear that such sensitive communications should not be forwarded without first checking with the attorney. Instead, address business and legal issues in separate emails. If business issues must be discussed in an email that gives legal advice, make clear that the business discussion is the context for the legal advice.

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