ABA asks high court not to 'muddy' attorney-client privilege

Confidentiality between an attorney and a client is one of the oldest privileges, with legal historians tracing its roots to 16th-century England. 

 But in an amicus brief filed with the U.S. Supreme Court on Nov. 23, the American Bar Association warns that this protection could be upended by a federal appellate court decision and urges the court not to tinker with a privilege that “is essential in our adversarial system of justice and ultimately benefits society as a whole.”  

The case stems from a tax law issue that also involves an expatriation matter. In its brief, the ABA argues that any change in the “time-honored” attorney-client privilege could affect the privilege in other civil and criminal matters as well. It offered examples to support its contention that a change in the privilege, as put forth in an opinion by the U.S. Court of Appeals for the 9th Circuit, could have wide-ranging consequences.  

At issue is whether a communication containing both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication. The appeals court in 2021 set forth a “primary-purpose test” that would weigh the purposes of communications in determining whether the privilege applies.  

In its brief, the ABA said the Supreme Court “should not muddy the analysis of a time-honored privilege that is, by comparison, relatively clear and understandable by clients and lawyers alike.” 

 “That (circuit’s) test does not allow clients to confidentially share full information with their lawyers in dual-purpose scenarios,” the ABA brief said. “It also inhibits both lawyers and clients from fully exploring potentially relevant facts and full legal options.”  

The ABA brief added: “The 9th Circuit’s test would narrow the privilege well beyond already well-established exceptions and limitations, without justification. It would also introduce substantial uncertainty into the existence and extent of the privilege. For this reason, this court should firmly reject it.”   

Oral arguments in the case are set for Jan. 9, 2023.