The U.S. Supreme Court decided on January 23, 2023, in a per curiam slip opinion that it would not consider whether communications including both legal and non-legal advice are protected by attorney-client privilege.

The Court originally decided to consider whether these “dual-purpose communications” are protected on October 3, 2022, after it took a case concerning an undisclosed law firm’s tax advice to a company under criminal investigation. When the firm received a grand jury subpoena demanding documents concerning the ongoing criminal investigation, the firm partially objected, citing the attorney-client privilege and work product doctrine. The District Court subsequently held the firm in contempt for refusing to produce the relevant documents. On appeal, the Ninth Circuit split with the D.C. Circuit and Seventh Circuit and affirmed the District Court, holding that a dual-purpose communication is privileged if the primary purpose of the communication was to obtain legal advice, as opposed to business or tax advice.

The Supreme Court was originally set to weigh in on this significant issue, but now it has decided that the writ of certiorari was “improvidently granted.”

The Court has issued only one opinion this term. The Jackson Walker team is continuing to monitor the cases we covered in our Docket Check and will let you know how and why the Court rules on these important matters.