The Ninth Circuit Court of Appeals decided Jan. 27 that the primary purpose test will be used to interpret attorney-client privilege.
When attorneys confer with clients for the dual-purposes of legal and business advice, courts will decide if the communication is confidential by finding the primary purpose of the communication. If the primary purpose is to give or receive business advice, the communication would not be protected. If the primary purpose is to give or receive legal advice, the communication would be protected.
Previously, district courts in the Ninth Circuit would use either the primary purpose test, or the “because of” test, according to the ruling. In the “because of” test, the communication would be considered confidential if it was made in anticipation of litigation. The “because of” test typically applies in the work-product context, according to the ruling.
In the relevant case, a grand jury issued subpoenas to a company and its law firm. Both are unnamed in the opinion. They refused to comply with the subpoenas, arguing they were protected by the “because of” test, and were held in contempt of court. The district court applied the primary purpose test. The company and the firm appealed their contempt charges.
Common law extends the attorney-client privilege only to communications made “for the purpose of facilitating the rendition of professional legal services,” the ruling said, citing the 1996 case United States v. Rowe. The “because of” test is based on interpretation of the work-product doctrine, and the appellants did not offer a persuasive reason to replace the common law test with the “because of” test, the ruling said.
“While the attorney-client privilege and work-product doctrine are typically mentioned together, attorney-client privilege and the work-product protection doctrine are animated by different policy goals. It thus makes sense to have different tests for the two,” the ruling said.
John Kronstadt presided over the Central District of California case.
Judge Kenneth Lee wrote the opinion, joined by Circuit Judges Mary Murguia and Bridget Bade.
Read the ruling here.
