Court’s decision means in-house counsel will continue to face ambiguity when and how attorney-client privilege is applied for dual-purpose communications.
Washington – The Association of Corporate Counsel (ACC) today issued the below statement in response to the U.S Supreme Court’s decision to dismiss the In re Grand Jury case. This was the first case in 40 years to take on the issue of attorney-client privilege. ACC, along with the U.S. Chamber of Commerce, filed an amicus brief in support of the “significant purpose” test for dual purpose communications.
“The Association of Corporate Counsel (ACC) is disappointed in the U.S. Supreme Court’s decision today to dismiss In re Grand Jury as improvidently granted,” said Susanna McDonald, vice president and CLO at ACC. “Without guidance from the Supreme Court, the legal landscape for dual purpose communications remains murky. In-house counsel routinely engage in communications that have both legal and business purposes that cannot easily be untangled. Because the circuit courts are split over which test should be used to determine privilege in these situations, in-house counsel are left wondering what test will apply when so many transactions are across state borders and many companies have operations in multiple states.
“In-house counsel need clarity on how all courts will view their client communications so that they can provide the best possible legal advice while also fulfilling their role as a strategic business partner,” continued McDonald. “The dismissal of In re Grand Jury is a missed opportunity to provide them needed clarity.”