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A law firm looking to keep the U.S. government from accessing the records of a client accused of tax crimes on Monday asked the Supreme Court to rule the documents are protected under attorney-client privilege.
The law firm and the client remain anonymous in the court filings, with the case name only reading “In Re Grand Jury.”
But the issue has been handled differently by various circuit courts, spurring the law firm to argue the justices must settle the scope of attorney-client privilege during criminal investigations, so there can be a uniform approach across all courts.
Daniel Benjamin Levin, who represented the law firm, told the justices that lawyers won’t be confident in their communications with clients when they do not know exactly what will be protected — their legal advice, other commentary, both legal and non-legal advice or potentially neither.
“You can have situations where it’s very hard to disentangle,” he said, referencing the difference between legal advice and other guidance an attorney may provide his or her client.
“It really depends on the context,” he said. “We want to encourage people to have full and open communication with lawyers.”
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Not many details are known from the documents about the legal battle, but the case arose when a law firm dealing with international tax issues was served a grand jury subpoena seeking thousands of communications on tax filings and returns shared with a client.
The firm handed over more than 20,000 pages of documents but withheld others, arguing they were shielded by attorney-client privilege.
The issue before the justices is how to handle communications between lawyers and clients when they address legal issues as well as non-legal issues.
The high court will decide what — if any — of the communications have legal protection and can remain at bay in a criminal probe.
Circuit courts have handled the issue differently over the years. For example, the U.S. Circuit Court for the District of Columbia has ruled the entire communication is privileged when it has a significant legal purpose.
The D.C. Circuit’s decision was authored by then-Judge Brett M. Kavanaugh when he was on the lower court, suggesting he may have a broad reading of attorney-client privilege in the present case before the bench.
Other circuits, though, have been more narrow in their approach.
The 9th Circuit, when it considered Monday’s case on appeal, said the court should weigh whether the legal purpose of the communication is as significant as the non-legal purpose in order for it to be protected. The court sided against the law firm, prompting it to bring the case to the high court.
The 7th Circuit, meanwhile, has ruled in the past that dual-purpose communications between lawyers and clients are never shielded under the attorney-client privilege.
The federal government argued Monday that in the case before the justices, the lower court judge thoroughly reviewed the communications and redacted certain records and areas where appropriate.
“This really was not a close case,” said Marsha G. Hansford, an assistant to the solicitor general.
She told the justices that district courts have been reviewing documents to examine the primary purpose of communications to discern when to impose attorney-client privilege and that approach should remain in place.
“Courts have been doing this for a really long time,” Ms. Hansford said.
Chief Justice John G. Roberts Jr. seemed skeptical of the workload the government was placing on lower court judges when in some cases they had to review thousands of documents.
“It seems like your approach really puts a lot of work on the judge,” Justice Roberts said.
However, justices on the liberal wing of the court were skeptical of allowing attorney-client privilege to be interpreted too broadly.
“This judge upheld your objection to a number of disclosures,” Justice Sonia Sotomayor told Mr. Levin, noting the lower court shielded some — but not all — of the law firm’s communications to its client. “So, I don’t see how judges are having a hard time.”
• Alex Swoyer can be reached at firstname.lastname@example.org.
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