Munger, Tolles & Olson’s Daniel Levin and Max Rosen Author Article on Attorney-Client Privilege and Dual-Purpose Communications Following the Supreme Court Dismissal of In re Grand Jury
Munger, Tolles & Olson partner Daniel Levin and associate Max Rosen, along with UCLA Health Chief Compliance Officer Donald Yoo, penned an article published in ACC Docket titled “Attorney-Client Privilege Lessons from In re Grand Jury.”
The article focuses on the current legal landscape following the U.S. Supreme Court decision to dismiss In Re Grand Jury, a case that attempted to address how attorney-client privilege applies to “dual purpose” communications—communications involving both legal and non-legal advice.
“If the communication served only a legal purpose—it would be privileged. If it served only a non-legal one, it would not be. What happens when a single communication is both legal and non-legal?” asked the authors.
As explained in the article, the distinctions drawn by the courts when it comes to attorney-client privilege are “especially difficult to identify in the business setting, where attorneys are consulted for and expected to render both legal and business opinions and the governmental setting, where officials serve in dual roles as attorneys as well as government advisors.”
The article notes that while the Supreme Court dismissed In Re Grand Jury without issuing a decision—leaving lower courts to grapple with how to rule on dual purpose communications—lawyers offering both legal and business advice can still apply some basic ground rules to protect privilege over attorney-client legal communications. The article helps to identify what could be considered a dual-purpose communication, offers best practices for navigating dual-purpose uncertainty, and outlines the four possible tests courts apply when determining whether a communication is privileged.