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
