ABA asks high court not to ‘muddy’ attorney-client privilege
Confidentiality between an attorney and a client is one of the oldest privileges, with legal historians tracing its roots to 16th-century England.
But in an amicus brief filed with the U.S. Supreme Court on Nov. 23, the American Bar Association warns that this protection could be upended by a federal appellate court decision and urges the court not to tinker with a privilege that “is essential in our adversarial system of justice and ultimately benefits society as a whole.”
The case stems from a tax law issue that also involves an expatriation matter. In its brief, the ABA argues that any change in the “time-honored” attorney-client privilege could affect the privilege in other civil and criminal matters as well. It offered examples to support its contention that a change in the privilege, as put forth in an opinion by the U.S. Court of Appeals for the 9th Circuit, could have wide-ranging consequences.
At issue is whether a communication containing both legal and nonlegal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication. The appeals court in 2021 set forth a “primary-purpose test” that would weigh the purposes of communications in determining whether the privilege applies.
In its brief, the ABA said the Supreme Court “should not muddy the analysis of a time-honored privilege that is, by comparison, relatively clear and understandable by clients and lawyers alike.”
“That (circuit’s) test does not allow clients to confidentially share full information with their lawyers in dual-purpose scenarios,” the ABA brief said. “It also inhibits both lawyers and clients from fully exploring potentially relevant facts and full legal options.”
The ABA brief added: “The 9th Circuit’s test would narrow the privilege well beyond already well-established exceptions and limitations, without justification. It would also introduce substantial uncertainty into the existence and extent of the privilege. For this reason, this court should firmly reject it.”
Oral arguments in the case are set for Jan. 9, 2023.
Virtual Cocktail Sip to raise funds
The Black Women Lawyers Association of Michigan (BWLAM ) is again partying with a purpose with its Virtual Cocktail Sip on Thursday, December 15, beginning at 6:30 p.m.
The online event will feature DJ Wax Tax N Dre with Nikki the Bartender. BWLAM will have a raffle, play games, and give away prizes. Money raised during the event will go towards BWLAM’s continuous learning scholarships.
Cost for the virtual event is $35. For additional information or to register, visit www.blackwomenlawyers.org and click on “events.”
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