In a one-line order issued last week, the Supreme Court dismissed In Re Grand Jury, No. 21-1397, one of the most significant cases about the attorney-client privilege in decades.  The dismissal came just two weeks after oral argument.  The Court explained that the writ of certiorari had been “improvidently granted,” meaning the Court should not have agreed to hear the case.

In re Grand Jury invited the Court to address the recurring question of how the attorney-client privilege applies when a client confers with a lawyer and receives both legal and non-legal advice.  The case came to the Court after the Ninth Circuit ordered an unnamed law firm to comply with a grand jury subpoena for documents related to its advice on a client’s taxes.  The Ninth Circuit concluded that the attorney-client privilege did not attach because legal advice was not the “primary purpose” of the communication.

The “primary purpose” test applied by the Ninth Circuit reflects the approach that a majority of courts take in determining the scope of the attorney-client privilege.  In Re Grand Jury provided the Court the opportunity to endorse a broader and clearer test used by a smaller group of courts including the D.C. Circuit, which asks whether receiving legal advice was at least one “significant purpose” of the communication.  The latter test would more clearly protect attorneys’ communications with their clients on complex matters involving both legal and non-legal advice.

Although the Court did not explain its reasons for dismissal, the Justices could have concluded that the facts of the case—which involved a confidential grand jury proceeding—offered a poor vehicle for addressing the issue.  Alternatively, the Court may have been frustrated by how the parties shifted their arguments over the course of briefing.  But a dismissal does not necessarily indicate that the Court will decline to weigh in on the “primary purpose” v.  “significant purpose” debate in the future.  After all, the original decision to hear the case suggests an interest in the issue.  In the meantime, it remains important to be aware of the limits of the attorney-client privilege as applied to dual-purpose communications, and how that answer may change depending on the governing law.

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Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.

Photo of Sonya Winner Sonya Winner

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and…

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and federal courts across the country.

Sonya’s cases typically involve difficult technical issues and/or complex legal and regulatory schemes. She is regularly able to resolve cases before the trial phase, often through dispositive motions. But when neither summary judgment nor a favorable settlement is an option, she has the confidence of her clients to take the case all the way through trial and on appeal. Her recent successes have included a cutting-edge decision rejecting a “true lender” challenge to National Bank Act preemption in a class action involving interest rates on student loans, as well as the outright dismissal of a putative antitrust claim against the National Football League and its member clubs asserting an unlawful conspiracy to fix cheerleader compensation.

Sonya has been recognized as a leading trial lawyer by publications like Chambers and the Daily Journal. She is chair of the firm’s Class Action Litigation Practice Group.