In re Grand Jury

 The Supreme Court's first opinion Monday of this session, a week and a half ago now, was disappointing. Much awaited, but more of a whimper than a bang. 

One of the two cases decided is intriguing, but the SCOTUS decision entirely evaded the reason for the intrigue. 

The case turned on the extent of the attorney-client evidentiary immunity. If an attorney and a client have a discussion about some completely non-legal matter (say, the client's recent travels), the fact that they happen to be attorney and client is not germane. The conversation may be pertinent if the client latter claims an alibi defense to some criminal charge and the conversation throws light upon it, the conversation is NOT privileged.

But suppose an attorney and client have a conversation that touches upon both legal and non-legal matters. Courts will not try to de-scramble the egg and protect the purely legal parts. Either the conversation is as a whole non-legal enough to lose the privilege or it isn't. Courts around the country have taken different views on the question of when the privilege can be deemed to have been lost. What if a tax lawyer gives accounting advise?  That is not his business, but it can certainly come up in the conversation on matters that very much ARE his business. 

And such a conversation was at the root of this litigation. 

Unfortunately, SCOTUS punted the matter. No illumination comes out of it at all. 

Here are two further paragraphs on the subject from a client memo sent out by Wachtell Lipton, a prominent corporate-law oriented law firm:

 The absence of clarity from the Supreme Court leaves dual-purpose communications potentially subject to inherently difficult-to-predict judgments by the courts regarding the relative importance of legal advice within a given communication or business context.  This continued uncertainty in the wake of the Court’s dismissal will require vigilance when significant legal advice is intertwined with business, regulatory, or other advice, as often may be the case for in-house counsel wearing multiple hats.

          In crafting internal communications, board materials, and other critical corporate records, counsel should be mindful that, if litigation were to arise, privilege determinations may be difficult to predict.  Accordingly, counsel should take care, whenever appropriate, to make clear the central aim of seeking or providing legal advice, and companies must take heed of the risk that corporate claims of privilege in respect of such communications will likely be challenged in the context of hard-fought litigation.

That's why they're the ones who get to work in the snazzy mid-town building shown above.