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Lawyers have returned to the road.  We are traveling for court hearings, depositions, client meetings, mediations, and conferences.  And that travel necessarily includes hotel stays. But, as we know, the work never goes away. While we are in those hotels, we are still working—taking a video deposition while attending a conference, sending numerous emails, drafting that contract, and revising that brief.

We often go to that so-called hotel “business center”—that two computer, one printer closet—to print that contract or brief or print emails and documents to take to the next day’s meeting, deposition, or court appearance. 

The attorney–client privilege and work-product doctrine travel, too.  They go where lawyers go.  And despite using hotels for a workspace, we sometimes forget that hotels are not our office.  That business closet is not our private office.  The hotel staff are not our staff.  And when we forget this, the chance for privilege waiver increases dramatically.  And if you think the risk is small, think again.

True Story

Years ago, I was in the office of counsel for my adversary, a governmental agency, waiting to defend my client’s deposition.  While waiting in a public space in this government building, my law partner called and we discussed the case, including information about the upcoming deposition.  I intentionally left the public area and took the call in a more secluded and private area.

Opposing counsel later filed a motion to compel my law partner and me to reveal the substance of that conversation.  Her argument? That she could hear our conversation, including the comments of my partner on the other end of the line.  We actually briefed and argued that motion.  While I was a bit nervous—I suppose I could have taken the call in a more secluded area, I was able to prove up the steps I took to preserve confidentiality and the judge denied the motion.

It was the classic eavesdropping situation by my opposing counsel, and courts typically don’t allow eavesdroppers to breach a lawyer or client’s privileged communications.  New York and California, for instance, have statutes prohibiting exactly that type of conduct.

The eavesdropping exception, however, only goes so far.   When lawyers intentionally or carelessly—even if innocently—allow third parties, including staff and others in that hotel “business center,” to see their privileged communications, that privilege may evaporate.

Two hotel stories illustrate the point.

A New York Hotel Story

In the 1980s, a wealthy businessman, Fred Weisman, had a long-term business—and personal—relationship with Sachiko Bower.  On a business trip, they stayed together in a hotel suite because, as Bower put it, they were “sleeping together.”  Bower remained at the hotel when Weisman left for a business meeting and began straightening the businessman’s papers.  When doing so, she saw a letter from Weisman’s attorney to Weisman that mentioned her name, so she surreptitiously made a copy.

FUN FACT: The plaintiff, Sachiko T. Bower, was the subject of an Andy Warhol piece completed in 1977 and sold in 2021 for over $400,000.

When the relationship ended, hotly contested litigation erupted, with Bower claiming that Weisman agreed to give Bower an interest in his business affairs and other financial-security perks so long as she did not remarry or leave the United States. Bower’s attorneys sought to depose Weisman about his attorney’s letter that she took from the hotel suite.

Weisman claimed privilege and countered any waiver argument by arguing the “eavesdropper exception.”  The court, however, stated that “the eavesdropper rules does not … in any way reduce the client’s need to take all possible precautions to ensure confidentiality.”  For example, if “the communication takes place in a crowded elevator the client should expect that there will be persons listening and he will be taken not to have intended the statements to be in confidence.”

Here, the court found that Weisman’s leaving the “letter spread out on a table in a room in a suite in which Bower” was staying did not “reach the level of taking all possible precautions to ensure confidentiality.”  Had Weisman placed the letter in a briefcase or a drawer, the court said, then he would have had a better argument for the eavesdropping exception.  But he left the letter on a table and waived the privilege by doing so.  Bower v. Weisman, 669 F. Supp. 602 (SDNY 1987).

A Berlin Hotel Story

More recently, the CEO of Fourth Dimension Software (FDS) was staying at the Berlin Hilton as he prepared for a next-day meeting with another company to discuss licensing of FDS’s software.  FDS’s General Counsel had sent the CEO a privileged email about the potential business relationship.  Needing a copy for the upcoming meeting, the CEO forwarded the privileged email to the Berlin Hilton’s front desk personnel at the general email box, info.berlin@hilton.com, with this subject line:

Please print one copy. I’m waiting at the front desk. Thanks.

If the CEO needed the email printed, isn’t it “reasonably necessary” to ask the front-desk staff to do that for you? Apparently not. The court said that the CEO did not need it printed because he was “already in possession” of it. Nor did the CEO seem to worry, the court noted, about maintaining confidentiality by sending the email to a general inbox:

On the contrary, the forwarded email contains no confidentiality warnings or other language alerting the hotel desk recipient(s) not to read or share its contents and to delete it after printing.

So, the court ruled that the CEO disclosed a privileged communication to a third party and waived the privilege.  Think about that—the hotel front-desk personnel almost certainly did not read the email, care about the email, or disclose it further; rather, they were performing a service.  Yet, the court found waiver. Fourth Dimension Software v. Der Touristik Deutschland GMBH, 2021 WL 4170693 (N.D. Cal. Sept. 14, 2021).

Take-Aways

It may seem silly. It may seem overkill. It may seem form-over-substance and a bit illogical.  But it’s real.  Lawyers working in hotels, other offices, or any non-private space risk privilege waiver when they lack diligence in protecting their confidential communications and work product from the eyes and ears of any third party.

In other words, lawyers must “take all possible precautions to ensure confidentiality” or face an anxiety-inducing motion to compel.  I went through it.  Hope you can avoid it.

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The U.S. Supreme Court was, for the first time in some time, ready to issue an opinion involving the corporate attorney–client privilege.  The issue was the proper standard courts should use to determine whether the attorney–client privilege protects dual-purpose communications—those created for legal and non-legal purposes.  In re Grand Jury, No. 21–1397 (U.S.).  The specific question presented was—

Whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

I have been following the case in a series of posts, having (1) examined the Court of Appeals’ decision, (2) reviewed the appellant’s petition for writ of certiorari, the government’s opposition, and the supporting amici positions, (3) examined the petitioner’s merits arguments, (4) reviewed the briefs of the fourteen amicus parties, (5) discussed the government’s merits opposition, and (6) commented on the petitioner’s reply brief. I even authored an amicus brief.

U.S. Supreme Court Dismisses Writ of Certiorari as “Improvidently Granted”

The Court held oral argument on January 9, 2023, but, two weeks later, dismissed the writ as “improvidently granted.” See the per curiam order here. But why? Was it the oral argument? You may read the transcript here or listen to the argument here to make your own determination.

Changing Positions?

The justices recognized that each of the parties appeared to change its standard for privilege protection of dual-purpose communications. The petitioner initially submitted that the significant purpose test protects clients’ ability to seek “bona fide legal advice” from their lawyers. But when the Chief Justice and Justice Alito questioned whether “bona fide” meant good-faith legal advice, the position seemed to change “any legal purpose” rather than a “significant legal purpose.” Justice Jackson noted that the petitioner came up with a “new, perhaps, definition of significant.” And the petitioner and Justice Alito had this exchange:

Justice Alito: Is there a difference between something being significant and something being done not in good faith?

Petitioner: Those are the flip side.

Justice Alito: You’ve changed your position.

Justice Alito proved an equal-opportunity jurist, telling the government that it “was walking away from [its] argument too.” The government argued for the primary purpose test but agreed that the significant purpose test should apply when trial courts cannot disentangle the communication’s legal purpose from its nonlegal purpose, stating this–

Once there are multiple really meaningful purposes and courts can’t tell what to do with that and there isn’t a purpose that is clearly predominant, we are fine with kind of a tie goes to the runner rule in favor of the privilege in those cases.

The government and the Chief Justice discussed percentages, with the government conceding that if the significant purpose test should apply even if the legal purpose is less than 50%, even if 60% of the communication was non-legal and 40% legal.

Judges Don’t Do Math

Perhaps it was inevitable, but the colloquy between the justices and counsel drifted into a discussion of percentages. Under the primary purpose test, the privilege applies if the trial judge determines that 51% or more of the putatively privileged communication’s purpose related to legal advice, right? Setting the bar at 51%, however, would discourage corporate employees from seeking legal advice, the petitioner argued. It should not matter whether the legal-advice component was as low as 25%, the privilege should apply so long as the advice is “bona fide.” This prompted Justice Sotomayor to comment that, essentially, “there is no percentage to significant.”

Justice Jackson raised the hypothetical of a business meeting where a lawyer attends but talks for only fifteen minutes–does that rise to the level of a significant legal purpose so that the privilege protects the entire meeting from discovery? The Chief Justice wanted to know when the legal purpose became insignificant–52/48? 60/40? Justice Barrett tried to move away from a discussion of percentages by focusing on the “practicalities” that the privilege proponent has the burden of persuading the trial judge that the communication’s legal purpose is significant.

But they couldn’t move away from it. Justice Jackson noted that trial courts should not do math, and the government, after discussing percentages, echoed that “judges don’t do math.” The government backed away from its concession that a 40% legal purpose sufficed to secure privilege protection, but then denied that the percentage had to be 51%. This prompted Justice Gorsuch to concede: “I’m really confused now” but at least he understood “the source of the confusion.” That’s right–even though “judges don’t do math,” the justices and lawyers referred to percentages over 30 times.

Reason and Experience

Federal Rule of Evidence 501 dictates that the common law, as interpreted “in the light of reason and experience,” governs privilege claims. Justice Alito focused on the “reason” part of that dictate, challenging the government’s argument that the primary purpose test is “easy to administer.” He sought feedback on a test focused on importance–

What’s wrong with saying, if there’s an important legal purpose, then it’s privileged?

The government instead wanted to discuss the experience side of Rule 501’s dictate, arguing that “the weight of authority” favors the primary purpose test. But Justice Alito noted that this authority was not binding and asked, “what if we thought that reason and experience pointed in different directions?”

If It Ain’t Broke, Don’t Fix It

Other justices wanted to focus on experience. Justice Kagan raised “the ancient legal principle, if it ain’t broke, don’t fix it,” referring to the argument that the majority of courts employ the primary purpose test. Justice Sotomayor, also highlighting the “experience” part of the dictate, said that the Court should look at what the “state courts are doing.” The justice saw no evidence that state courts were having difficulty applying the primary purpose test, as the petitioner argued. She expressed concern that the Court’s decision would change the states’ common-law test or at least result in the significant purpose test applying in federal courts and the primary purpose test applying in state courts.

The petitioner countered that, upon closer examination, the courts employing a so-called primary purpose test were actually determining whether the purported legal purpose was significant enough to warrant privilege protection. And the Chief Justice, when discussing significant versus primary, recognized that, “to a certain extent, … we’re talking about labels rather than analysis.”

Justice Kavanaugh to the Rescue?

Justice Kavanaugh, the author of the Kellogg opinion that rejected the primary purpose test in favor of the significant purpose test, attempted to rescue the discussion. He bolstered that petitioner’s argument by stating that, “when you actually get into the cases and look at them,” the courts articulating a primary purpose test are “not really doing what the label primary purpose would say.” He reinforced the government’s concession that, if trial courts cannot disentangle a communication’s legal and non-legal purposes, then they do not need to some “metaphysical parsing” to render the privilege decision.

So, What’s Next?

Why did the Court dismiss the writ of certiorari as improvidently granted? In short, we do not know. But the Court initially accepted the case, which shows that it has an interest in this important issue. We know Justice Kavanaugh has an interest in the issue, having authored the Kellogg decision and the Boehringer decision preferring the significant purpose test.

The discussion at oral argument, however, perhaps gives us some insight. The justices seemed perplexed that the parties could not clearly articulate and define the test that trial courts should use when deciding whether the attorney-client privilege protects communications with legal and non-legal purposes. Questions remain whether, as the Chief Justice and Justice Kavanaugh indicated, federal and state courts “label” the exercise as a primary purpose test even though the actual “analysis” employs a significant purpose test. Whatever the reason for the dismissal, the dismissal is disappointing to those wanting better predictability regarding when corporate communications will receive privilege protection.

So, what now? Remember that the In re Grand Jury case would have produced a decision under federal common law, meaning its application applies only in those cases, like federal-question cases, where federal law supplies the rule of decision. The result would not have governed federal cases arising under diversity jurisdiction, where state privilege law applies.

This choice-of-law difference, coupled with the oral argument, should persuade lawyers and courts–both federal and state–to better explain the test when presented with a privilege question over dual-purpose communications. If labeling the standard as “primary purpose,” are courts really weighing and balancing multiple purposes to identify the lone, primary purpose? If not, then let’s appropriately “label” the “analysis,” as the Chief might say.

We can all agree that, as the Court stated 40 years ago in Upjohn, “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Yet, with the dismissal of In re Grand Jury, we remain in a state of privilege uncertainty when it comes to multipurpose communications. Let’s return to the drawing board, be diligent, disciplined, and thoughtful in our privilege arguments, and only then will some certainty emerge.

On:

For the first time in some time, the United States Supreme Court agreed to hear a case involving the corporate attorney–client privilege.  The issue is the proper standard courts should use to determine whether the attorney–client privilege protects dual-purpose communications—those created for legal and non-legal purposes.  In re Grand Jury, No. 21–1397 (U.S.).  The specific question presented is—

Whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

In a series of posts, I’ll follow and comment on the case and final decision.  I previously (1) examined the Court of Appeals’ decision, (2) reviewed the appellant’s petition for writ of certiorari, the government’s opposition, and the supporting amici positions, (3) examined the petitioner’s merits arguments, (4) reviewed the briefs of the fourteen amicus parties, and (5) discussed the government’s merits opposition. The Petitioner filed its reply brief, available here, rebutting the government’s arguments and reinforcing its request that the Court adopt the Kellogg significant purpose test. This is the last brief, so let’s see if it proves persuasive.

The Type of Communications at Issue

The parties appear to agree about the type of communications to which the Court’s adopted standard would apply. For those multipurpose communications that can be segregated, the parties agree that trial courts should segregate the legal-advice portions, which the privilege protects, from the unprotected nonlegal portions. Courts can then apply the privilege to the legal-advice sections by ordering production of the nonlegal segments with the privileged pieced redacted.

The multipurpose communications at issue, then, are those where the legal and nonlegal purposes are inextricably intertwined and cannot be readily separated. The government argues that courts should evaluate and weigh a communication’s various purposes and determine whether the legal purpose predominates. If not, the party must produce the entire multipurpose communication. The petitioner argues that trial courts should simply evaluate the entire multipurpose communication and apply the privilege to the entire communication if one of its significant purposes relates to legal advice.

The Significant Purpose Test Still Permits “Every Man’s Evidence”

The government argued that the attorney-client privilege is an exception to the “every man’s evidence” maxim and that the significant purpose test would improperly expand the privilege. Citing Wigmore, Upjohn, and Fisher v. United States, 425 U.S. 391 (1976), the petitioner challenged this conclusory statement, showing that the significant purpose test squarely meets the privilege’s “classic formulation,” which protects confidential communications “where legal advice of any kind is sought” from a lawyer. Legal advice “of any kind” is necessarily part of communication intertwined with legal and nonlegal purposes, and the significant purpose test implements, rather than expands, the privilege as we have always applied it.

The petitioner also challenged the government’s characterization of the significant purpose test as “relatively novel,” returning to Upjohn to show that the Court has “never weighed the relative importance of the legal and business purposes to decide which predominated.”  The petitioner noted, correctly, that the “government attacks the significant purpose test but never states that Kellogg was wrongly decided.”

How to Define “Significant”

The government criticized the significant purpose test as “an amorphous concept” because “any proffered definition would be unlikely to provide the concrete guidance that this context requires,” but the petitioner responded that “the legal purpose must be bona fine—i.e., meaningful or legitimate.”  In other words—

If the lawyer is acting as a lawyer and the communication has a meaningful or legitimate legal purpose, it should be privileged.

Using the Webster-based definition, as many courts have, a court applying the significant purpose test would likely rule that the privilege does not protect a communication that merely “cc’s” a lawyer.  Nor would the privilege protect a communication that has a de minimis connection to legal advice.

Having countered the government’s challenges to the Kellogg test, the petitioner summed it up as follows:

The significant purpose test is by every measure the better approach. It ensures that communications properly subject to the attorney-client privilege are reliably and predictably protected from disclosure, and it poses no adverse risk of abuse.

Primary Purpose Test is an Improper “But-For” Test

Courts agree that one of the rationales for the attorney-client privilege is to encourage clients to have candid communications with their lawyers because, absent privilege protection, clients would not have these open discussions. The government argued that applying the primary purpose test complies with this rationale because, if a client-communication’s primary purpose relates to business advice, the it “would have been made absent the privilege.”

The petitioner described this argument as effectively advocating a “but-for” test to apply the privilege: if the client would not make the communication but for legal advice, then the privilege should not apply. But just as Upjohn and Kellogg rejected similar but-for rules, the Court should reject the primary purpose test for the same reason.

The petitioner also challenged the government’s characterization of the primary purpose test as the majority rule. It identified and distinguished a handful of cases upon which the government relied. As for the Minnesota Supreme Court’s adoption of the primary purpose test in In re Polaris, Inc., 967 S.W.2d 397 (Minn. 2021), the petitioner argued that the majority and dissenting opinions show the test’s subjectivity and illustrate “the intractable problems of administration that the primary purpose test produces.”

The petitioner noted that the Court in Upjohn rejected the control group test even though lower courts had overwhelmingly applied it when determining the scope of the corporate attorney-client privilege, and concluded–

Even if courts had been regularly applying the Ninth Circuit’s single primary purpose test, this Court should not perpetuate a flawed approach here.

Significant Purpose Test Applies Well in the Tax Context

The government argued that applying the significant purpose test to tax-related communications exacerbates the test’s inherent problems and raises to privileged status tax-preparation communications that are otherwise subject to government review. In short, the district court “got it right.”

The petitioner challenged this division of legal practice areas for privilege protection. The significant purpose test should apply to all legal communications, including those involving tax issues, and the government’s proposal is a “recipe for confusion.” It is “utterly impracticable,” the petitioner argued, to apply different privilege rules to different practice areas because courts and lawyers do not divide the law into “neat categories.” And, we do not know whether the district court “got it right” because it applied the wrong test. The Court should remand the matter to the district court to apply the significant purpose test because the documents at issue “reveal legal communications.”