U.S. Supreme Courtroom
Legislation agency’s extra protecting take a look at for attorney-client privilege ‘is a giant ask,’ Kagan says
The U.S. Supreme Courtroom as composed June 30, 2022, to current. Picture by Fred Schilling through the Supreme Court website.
U.S. Supreme Courtroom Justice Elena Kagan advised a lawyer representing a tax regulation agency Monday that his proposed expansive take a look at for safeguarding paperwork beneath attorney-client privilege “is a giant ask,” based on protection of the oral arguments.
At subject in In Re Grand Jury is what take a look at courts ought to apply when contemplating whether or not to guard “twin objective” paperwork that comprise authorized and nonlegal recommendation. An unnamed regulation agency specializing in worldwide tax regulation is fighting disclosure of dual-purpose paperwork sought by the federal government in an investigation of a shopper.
The unnamed shopper was an early supporter of bitcoin who sought tax preparation providers and authorized recommendation on the implications of expatriation.
A lawyer representing the agency, Daniel B. Levin, argued that courts ought to use a “important objective” take a look at that protects paperwork beneath attorney-client privilege if acquiring authorized recommendation was one of many “important functions” of the communication. That take a look at was adopted in 2014 by then-Choose Brett Kavanaugh on the U.S. Courtroom of Appeals for the District of Columbia Circuit earlier than he grew to become a Supreme Courtroom justice.
Kagan questioned whether or not the significant-purpose take a look at ought to supplant the prior take a look at utilized in such circumstances.
“We’ve had the attorney-client privilege for a very long time, and till 2014, no person ever prompt that the take a look at that you just’re proposing is the suitable one,” Kagan advised Levin.
Kagan prompt following the “historical authorized precept” of “if it ain’t broke, don’t repair it.”
The federal government needs the Supreme Courtroom to make use of the much less protecting take a look at that solely offers attorney-client privilege safety to paperwork when their “main objective” is to present authorized recommendation.
However Chief Justice John Roberts mentioned the federal government take a look at requires courts to “parse issues fairly advantageous” by all the needs of communication after which to rank organize them.
“It appears to me that your method actually places numerous work on the choose,” Roberts mentioned.
Arguing for the federal government, Division of Justice lawyer Masha Hansford mentioned courts making use of the primary-purpose take a look at aren’t utilizing percentages to rank functions of a doc. As a substitute, courts attempt to get an general sense of a communication’s objective, Hansford mentioned.
Justice Neil Gorsuch mentioned Hansford’s take a look at sounds rather a lot just like the agency’s significant-purpose take a look at.
“What’s the disagreement?” Gorsuch requested.
The ABA supported the agency in an amicus temporary. The ABA argued that purchasers typically focus on a number of subjects with legal professionals that aren’t solely law-related, and such discussions “must be protected as an entire, not parsed sentence by sentence or phrase by phrase.”