on Jan 5, 2023
at 9:55 am
A lawyer’s legal advice is privileged. A court cannot order the lawyer or the client to disclose it. But a lawyer’s nonlegal advice is not privileged. What happens when advice is partly legal and partly nonlegal and the two parts cannot be untangled? In such dual-purpose situations, does the privilege protect all the advice or none of it?
On Monday, the Supreme Court will hear opposing answers to that question in a case known as In re Grand Jury. A law firm will argue that the privilege should protect all client communications “where obtaining or providing legal advice was one of the significant purposes behind the communication,” even if nonlegal advice predominated. The United States will argue that unless legal advice was the client’s “primary” purpose, none of the dual-purpose communications should be privileged.
The difference between