Privileges in 2022–Year in Review
The year 2022 brought us more privilege-related issues and court rulings—some baffling, some concerning, and all educational. Others published timely articles on a few unsettled privilege questions, which I identify and link in Ideas, Opinions, and Advocacy: Privilege Publications in 2022. As for judicial decisions, the year 2022 saw the U.S. Supreme Court wade into two significant privilege areas, courts grapple with privilege issues arising in internal investigations, courts concerned with government filter teams, and an unfortunate lawyer suspension for a privilege breach. Let’s review 2022 and learn from it as we anticipate major privilege decisions in 2023.
Attorney-Client Privilege in the U.S. Supreme Court
In October 2022, the U.S. Supreme Court agreed to hear a case about the scope of the corporate attorney-client privilege. The question is whether the privilege protects so-called dual-purpose communications–those communications created for legal-advice purposes and non-legal purposes. The petitioner argues for the significant-purpose test, adopted in then-Judge Kavanaugh’s opinion in In re Kellogg Brown & Root, Inc., a decision I discussed here, which applies the privilege to a dual-purpose communication so long as one of its significant purposes is legal advice. The federal government argues for the primary-purpose test, which applies the privilege only where the communication’s primary purpose is seeking or delivering legal advice.
I authored and filed an amicus brief on behalf of DRI’s Center for Law and Public Policy, arguing that the Kellogg significant-purpose test better recognizes the role that in-house lawyers play in today’s corporate environment. I have also followed and explained arguments of other amici, the petitioner, and the government, including arguments made at the petition stage. Oral argument will be held in January 2023 and we expect this much-needed and important decision to arrive before the end of the current term.
State-Secrets Privilege in the U.S. Supreme Court
Quite remarkably, the U.S. Supreme Court issued two decisions in 2022 that bolstered the state-secrets privilege. This privilege allows the federal government to prevent disclosure of information related to the country’s national security interests. In United States v. Zubaydah, ___ U.S. ___ (2022), available here, the Court held that the privilege permitted the CIA to withhold information that would confirm–or deny–that it maintained a detention camp in Poland. In FBI v. Fazaga, ___ U.S. ___ (2022), available here, the Court held that the Foreign Intelligence Surveillance Act of 1978 (FISA) does not displace or override the government’s ability to assert the state-secrets privilege. Texas Law Professor Robert Chesney published this article in the Harvard Law Review addressing these two opinions, and I commend it to you.
Courts continue to grapple with deciding privilege issues that arise during an entity’s internal investigation, and we saw at least two decisions that illustrate the importance of a lawyer’s engagement letter in determining whether the lawyer’s investigation was for legal-advice purposes or simply to gather facts. In a case involving the University of Iowa’s internal investigation into race-related allegations by current and former football players, the Court found that the engagement letter proved the lawyer’s investigation was not for legal-advice purposes. Read about it in No Privilege for University of Iowa’s Internal Investigation, Court Rules.
By contrast, an Illinois court ruled that a lawyer’s engagement agreement sufficiently proved that the privilege protected her investigation because it specifically noted the legal-advice reasons for her retention. Learn why in Court Upholds Privilege for Company’s Internal Investigation—Here’s Why
North Carolina’s Major Decision
Speaking of internal investigations, the North Carolina Supreme Court issued a decision–that effectively incorporated a lengthy opinion from a Business Court–holding that the privilege did not protect from disclosure a law firm’s internal investigation into sexual-harassment allegations. The decision did not specifically turn on the law firm’s engagement letter but instead on the entity’s sexual-harassment policy mandating an investigation. The court held that the mandate meant that any investigation had to be for business reasons and not legal reasons–no matter how the investigating law firm papered the engagement. The opinions in this case make it difficult to ascertain the exact reasons why the privilege failed, so read my analysis in N.C. Courts Speak on Privilege Consequences of Required Investigations and Legal Purpose. We Should Listen and see how this may affect your future investigations.
Waiver–Precarious and Broad
Each year brings several waiver decisions and 2022 was no different. For my 400th post since starting this blog, I discussed a court’s decision distinguishing waiver rules for the work-product doctrine and the attorney-client privilege. Read about it in My 400th Post: Court Applies Different Waiver Rules for Work-Product Doctrine and Attorney–Client Privilege.
One company lost privilege protection by disclosing privileged internal-investigation information to the SEC, with the court imposing the broad subject-matter waiver doctrine, which it found to be a significant waiver. See what you think of the opinion by reading Court Imposes “Significant Waiver” for Disclosure of Privileged Investigation to DOJ and SEC.
Subject-matter waiver was also front-and-center in a Connecticut case where the court adopted doctrine as a matter of state common law. Understand why and the doctrine’s limits in First Impression: Connecticut Court Adopts Subject Matter Waiver Doctrine.
Batson Challenge and Privilege
Aren’t a lawyer’s jury-selection notes protected by the work-product doctrine? One would think so, but a court found that an opposing party’s Batson challenge may require waiver of the work-product protection so that the striking lawyer can prove a non-discriminatory reason for her decision. Perhaps these are unique facts, but read my discussion of the issue in Hobson’s Choice? Batson Challenge, Jury-Selection Notes, and Work-Product Waiver and see how this waiver issue may apply in future Batson challenges.
Prosecutors and Filter Teams
The year 2022 saw more attention given to federal prosecutors’ use of a filter team to review putatively privileged information before turning over ostensibly nonprivileged documents to their investigating peers. In fact, I appeared on MSNBC’s The Katie Phang Show to discuss use of a Special Master when a federal district judge did not approve of U.S. Attorneys’ use of a filter team to review former President Trump’s documents seized from Mar-a-Lago.
In another case, a federal district judge disapproved of prosecutors’ self-imposed protocols on its filter team and imposed its own standards. Read about this decision in Fox in the Privilege Henhouse: Court Scraps USAO’s Filter Team Protocol and Unilateral Privilege Decisions and see if this will guide your actions when clients face this issue.
Business Communications or Marital Communications?
The marital-communications privilege protects from disclosure a married couple’s private conversations, right? But is that true when those cozy conversations pertain to their business interests? One court adopted a business-communications exception, and I suggest you read about it in Honey, I Shrunk the Profits! Court Adopts “Business Communications” Exception to the Marital Communications Privilege because I suppose lawyers overlook this potentially wide-ranging exception.
Stolen Privileged Documents–Don’t Do It
Discovery takes many forms, mostly formal but some informal. But when that informal discovery results in the receipt of obviously privileged information, bad things can happen, as the lawyer suing Cristiano Ronaldo learned in a case I discussed in Red Card! Court Terminates Case for Lawyer’s Use of Cristiano Ronaldo’s Purloined Privileged Documents.
Privilege Breaches and Lawyer Sanctions
What seems obvious in retrospect often is not so obvious in real time, or at least that is what one lawyer argued after he signed an affidavit revealing privileged information received from a former client. The disciplinary authority was not amused, issuing severe sanctions as I relay in Only in the Movies? Court Suspends Lawyer for Breaching Attorney–Client Privilege. Read it, heed it, and don’t let this happen to you.