Dual-purpose Communications Should Not Be Treated as Dueling Purposes

• Publication year: 2023
• Author: Megan Gregory

DUAL-PURPOSE COMMUNICATIONS SHOULD NOT BE TREATED AS DUELING PURPOSES

AUTHOR

Megan Gregory¹

INTRODUCTION

The protections provided by attorney-client privilege and the work-product doctrine are a cornerstone of American legal practice. On June 1, 2022, the California Lawyers Association submitted an amicus brief, authored by Laura Buckley and Adria Price, members of your Taxation Section Executive Committee, to support a law firm petitioning the Supreme Court of the United States to reconcile a circuit split recently widened by the Ninth Circuit's holding in In re Grand Jury² regarding when dual-purpose communications are afforded these protections. This article will provide a background of the In re Grand Jury case, why the California Lawyers Association decided to file an amicus brief, and my prospective as a second-year law student in assisting with the brief.

WHAT IS DUAL-PURPOSE COMMUNICATION; IN RE GRAND JURY BACKGROUND

Dual-purpose communications are those made with the mixed intentions of seeking legal advice and services, which are protected from discovery, and discussing unprotected non-legal matters.³

The Appellant-Client in In re Grand Jury sought Appellant-Law Firm's services in anticipation of expatriating from the United States. Law Firm provided legal advice to Client and also prepared Client's tax returns. In an archetypal example of what dual-purpose communications look like, the communications between Law Firm and Client contained both tax planning and controversy advice, as well as information to aid Law Firm in completing Client's tax returns. Generally, the former is considered protected legal advice protected by the attorney-client privilege, while the latter is unprotected.⁴

INITIAL SPLIT: THE "BECAUSE-OF" AND "PRIMARY PURPOSE" TESTS

In analyzing whether dual-purpose communications are privileged, courts chiefly employ two differing legal standards: the "primary purpose" test, and the "because-of" test (sometimes referred to as "the primary purpose" test and "a primary purpose" test, respectively).⁵ Notably, the Seventh Circuit holds that dual-purpose communications are never privileged.⁶

The because-of test, which Law Firm argues is the appropriate legal standard for analyzing privilege claims of dual-purpose communications, considers all contextual information to determine whether seeking or receiving legal advice has a causal relationship to the dual-purpose communication.⁷ By considering all the facts and circumstances, it affords protection to more dual-purpose communications.

In contrast, the primary purpose test seeks to determine a sole predominant reason for making a dual-purpose communication, and whether this single primary purpose was for protected legal services.⁸ If seeking or receiving legal advice was of secondary purpose to the communication, it is not protected.

However, in 2014, then-judge Brett Kavanaugh articulated a broader interpretation of the primary purpose test. In Kellogg, the DC Circuit held that communications can have more than one primary purpose, and the communications are privileged if seeking or providing legal advice was one of the material purposes for it.⁹

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THE NINTH CIRCUIT'S DECISION DEEPENS THE EXISTING SPLIT

While Client and Law Firm were working together, the government was investigating Client for criminal activities. Law Firm was served grand jury subpoenas for documents about its work with Client.^{10 11}

The district court granted the government's motion to compel production. Relying on the primary purpose test and explicitly rejecting the Kellog interpretation, the district court ruled that the dual-purpose communications were unprotected because they were not made solely to obtain or provide legal advice, or were otherwise discoverable under the crime-fraud exception.^{12 13}

Distinguishing the policy rationales for the work-product...