Attorney\u2013client 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 \u201csound legal advice or advocacy,\u201d which ultimately \u201cserves public ends.\u201d However, not all attorney\u2013client 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\u2013purpose communications occupy a no-man\u2019s land when it comes to privilege because there is no clear statement in the Constitution, federal statutes, or binding precedent that treats dual\u2013purpose com- munications uniformly in federal courts.<\/p>\n
State law governs attorney\u2013client 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, \u201cthe common law\u2014as interpreted by United States courts in the light of reason and experience\u2014governs a claim of privilege\u201d 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\u2013client privilege to dual\u2013 purpose communications.<\/p>\n
The murkiness surrounding privilege for dual\u2013purpose communications may chill the attorney\u2013client 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\u2013purpose 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\u2013purpose communication is privileged. It will argue that among the three approaches, the D.C. Circuit\u2019s 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.<\/p>\n