As workplace issues have become more complex, human resource professionals and managers often turn to employment lawyers for advice in sorting out matters involving the interaction between business requirements and the requirements of employment laws and regulations. When is such advice protected from disclosure under the attorney-client privilege?
When the U.S. Supreme Court agreed to hear In re Grand Jury, employer organizations were anticipating the Court would provide clear guidance on the issue and sort out the conflict between the federal appellate courts on whether and when “dual-purpose communications,” which include both legal and business advice, are protected by the attorney-client privilege. The case involved an appeal of the Ninth Circuit’s decision applying the “primary purpose” test to determine whether a communication is privileged. That test, which was also applied by the Second, Fifth and Sixth Circuits, “does not reflect the modern role that lawyers play in advising businesses,” the U.S. Chamber of Commerce argued in its brief. “[B]ecause the line between the business purpose and a legal purpose is blurry,” the Chamber argued, the primary purpose test is often “inherently impossible” to apply and therefore “bound to yield arbitrary and unpredictable results.”
In an opinion written by Justice Brett Kavanaugh when he was a federal appellate court judge, the U.S. Court of Appeals for the D.C. Circuit had adopted the broader “significant purpose” test when analyzing dual-purpose communications. Under that test, “So long as obtaining or providing legal advice was one of the significant purposes of the [communication], the attorney-client privilege applies.”
At least for now, however, the Supreme Court will not weigh in on the issue. Without explanation, not long after oral argument on the case, on January 23, 2023, the Court dismissed the appeal as “improvidently granted.”
What does this mean for employers? Until there is greater clarification on the attorney-client privilege issue, HR professionals and managers seeking attorney advice may wish to:
- Document the legal purpose for the advice, being aware that in the event of litigation they may need to support the argument that the primary purpose of the communication was to obtain legal advice.
- Think about whether it is necessary or advisable to include legal counsel in emails that include other managers or employees, because merely copying counsel on an email or other communication does not render it privileged.
- Consider whether a phone call might be preferable to an email or letter.
- If a written communication is necessary, consider labeling it “for the purposes of legal advice.”
Although this case did not end in an opinion from the Supreme Court, the Court’s initial decision to hear the case brought attention to the issue and may prompt lower courts to consider the practical issues in complex situations in which business and legal issues are intertwined, providing protection of the attorney-client privilege to communications in those situations.