Volume 36

Ethical lawyering, attorney-client privilege, and dual–purpose communications in light of In re Grand Jury

by David Kim

Attorney–client privilege protects communications between attorneys and cli- ents made to obtain or provide legal advice. When a client engages in full and frank communication with their attorney, the attorney is better situated to provide “sound legal advice or advocacy,” which ultimately “serves public ends.” However, not all attorney–client communications are purely legal in nature. In many contexts, attorneys provide advice that has both legal and non-legal compo- nents and purposes. These dual–purpose communications occupy a no-man’s land when it comes to privilege because there is no clear statement in the Constitution, federal statutes, or binding precedent that treats dual–purpose com- munications uniformly in federal courts.

State law governs attorney–client privilege when the underlying cause of action is grounded in state law. When a dispute arises in federal courts and the claim is not founded in state law, “the common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege” unless the United States Constitution, federal statutes, or rules prescribed by the Supreme Court say otherwise. None of the aforementioned have directly contemplated extending the attorney–client privilege to dual– purpose communications.

The murkiness surrounding privilege for dual–purpose communications may chill the attorney–client relationship. Uncertainty in the privilege can hamstring attorneys, causing their counsel to be less candid and valuable to their clients. As a function of this reduced value, clients may be less honest with their attorneys. Clients may also be less forthright because they fear their attorneys will have to disclose sensitive non-legal information in a dual–purpose communication. Governed by a code of professional responsibility, attorneys have a moral and professional duty to provide candid advice and competent representation. This Note will analyze the approaches three circuit courts of appeals use to determine whether a dual–purpose communication is privileged. It will argue that among the three approaches, the D.C. Circuit’s approach best empowers attorneys to pro- vide effective legal services and comply with Model Rules of Professional Conduct Rules 1.16 , 1.2(d) , 1.6(c) , and 2.1.

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