Amicus Curiae Brief — In Re Grand Jury

No. 21-1397

Jn the Supreme Court of the Gnited States

IN RE GRAND JURY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

JENNIFER B. DICKEY LISA S. BLATT

JONATHAN D. URICK Counsel of Record

U.S. CHAMBER LITIGATION WILLIAM T. BURKE

CENTER JOHN S. WILLIAMS

1615 H Street, N.W. JESSE T. CLAY

Washington, DC 20062 KEES D. THOMPSON*

WILLIAMS & CONNOLLY LLP

680 Maine Avenue, S.W.

Washington, DC 20024

(202) 434-5000

lblatt@we.com

Counsel for Amicus Curiae

* Admitted in New York and practicing law in the District of

Columbia pending application for admission to the D.C. Bar under the

supervision of bar members pursuant to D.C. Court of Appeals Rule

49(c)(8).

Page

INTEREST OF AMICUS CURIABL.... eens 1

SUMMARY OF ARGUMENT. ....... ee ceessessteeseeeeeees 2

ARGUMENT. ue ccssesscesccencceescecssesssnesensenesensesseeees 4

I. The Court Should Resolve The Circuit Split On

The Proper Test For Determining Whether The

Attorney-Client Privilege Protects

Communications With Multiple Purposes.......... 4

II. This Case Is A Rare, Golden Opportunity To

Resolve The Question Presented .............scseee 7

III. The Decision Below Creates Profound

Uncertainties Regarding The Attorney-Client

PYIVIEGE .........ssccssccssecescccsecessccssecesssessecsnecesssesnseees 12

IV. The Decision Below Disregards The Realities

Facing Modern Businesses And Discourages

Informed Decisionmaking.............:cssccssccssesseeees 15

CONCLUSION 1... ccsscsesscesecssecsnscssscsesseseseeesesones 21

TABLE OF CONTENTS

(I)

II

TABLE OF AUTHORITIES

Cases:

Adams v. Memorial Hermann,

973 F.3d 348 (Sth Cir. 2020)... cecteseteeeee 10, 11

American Zurich Insurance Co. v. Montana

Thirteenth Judicial District Court,

280 P.3d 240 (Mont. 2012)... cscccsccscsssrsessseeees 13

Byrd v. Reno, 180 F.3d 298 (D.C. Cir. 1999).............. 11

Cheney v. U.S. District Court for the District

of Columbia, 542 U.S. 867 (2004)... ceecsseeseees 8,9

Church of Scientology of California v. United

States, 506 U.S. 9 (1992)........cccssccssesncersesreesseees 9,11

Fisher v. United States, 425 U.S. 391 (1976).. 12, 19, 20

FTC v. Actavis, Inc., 570 U.S. 186 (2018) ...... ee 12

FTC v. Boehringer Ingelheim

Pharmaceuticals, Inc., 892 F.3d 1264 (D.C.

Cir, 2018) ou... cececcccsscsceccssssesssccscsssscecesvseesecens passim

In re The City of New York,

607 F.3d 923 (2d Cir. 2010)........ ce esscestesssssteeseees 8,9

In re Kellogg Brown & Root, Inc.,

756 F.3d 754 (D.C. Cir. 2014) wee passim

Louise Trauma Center, LLC v. Department of

Justice, No. 20-3517, 2022 WL 278771

(D.D.C. Jan. 30, 2022) oo... ccccssssccscscsssserevsssseenees 6

Makiel v. Butler, 782 F.3d 882 (7th Cir. 2015)........... 10

Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100 (2009) ....... ce ceessesseseseceseesceeessseneenes 8,9

Swidler & Berlin v. United States,

524 U.S. 899 (1998) .....cccssessssssccesssessseeees passim

United States v. Frederick,

182 F.3d 496 (7th Cir. 1999)... ccccscsesssetsseceeeees 6, 7

Ill

Cases—continued:

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) oo. eee eseeeeseeeeeeeeees

Upjohn Co. v. United States,

AAD U.S. 883 (1981) oe eeseseeeseeeeseeeeeenees

Statutes and Rules:

28 U.S.C. § 1292 0. ssesssseccssescsssecesecceseseesscees

All Writs Act, 28 U.S.C. $ 1651 eee

Fed. R. Evid. 501 ou. ee csesesseeeecceseeeeeseseeees

Other Authorities:

ABA Model Rules of Professional Conduct,

Rule 1.6, emt. 1 2.2... cc ecccssseccecsseseesesnenees

Rule 2.1 oii. ccc ecscccccsssssccescsssssccscssssesesssncnees

Kenneth S. Broun, Giving Codification a

Second Chance—Testimonial Privileges

and the Federal Rules of Evidence,

53 Hastings L.J. 769 (2002) ...........csccsseeeee

Deborah A. DeMott, The Discrete Roles of

General Counsel,

74 Fordham L. Rev. 955 (2005).................

Shari S. Diamond & Jessica M. Salerno,

Page

11, 12, 15

wee PASSIM

seosseneeeees 17

Reasons for the Disappearing Jury Trial:

Perspectives From Attorneys and Judges,

81 La. L. Rev. 119 (2020) wees

Neil Gorsuch, A Republic, If You Can Keep It

IV

Page

Other Authorities—continued:

Thomas O’Connor, When You Come to a Fork

in the Road, Take It: Unifying the Split in

New York’s Analysis of In-House

Attorney-Client Privilege, 25 J.L. & Pol’y

ZY VA) hc) ee 19

1 Restatement (Third) of the Law Governing

Lawyers § 72 (2000), Reporter’s Note ............006 13

Press Release, U.S. Small Business

Administration, Small Businesses Generate

44 Percent Of U.S. Economic Activity

(Jan. 30, 2019),

https://tinyurl.com/2p82WMWV...........scsscsscsseessesees 20

15B Charles Alan Wright, Arthur R. Miller, &

Edward C. Cooper, Federal Practice and

Procedure § 3914.23

(2d ed. Apr. 2022 update)............cscccsccsecesseceseees 9,10

Jn the Supreme Court of the Gnited States

IN RE GRAND JURY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE’

The Chamber of Commerce of the United States of

America (Chamber) is the world’s largest business

federation. It represents approximately 300,000 direct

members and indirectly represents the interests of more

than three million companies and _ professional

organizations of every size, in every industry sector, and

from every region of the country. An important function

of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases that raise

issues of concern to the Nation’s business community.

This is one such case. The business community has a

strong interest in a uniform privilege standard for dual-

1 Petitioner and Respondent have consented to the filing of this brief.

Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus or its counsel have made any monetary contributions

intended to fund the preparation or submission of this brief.

(1)

purpose communications. For this reason, the Chamber

filed an amicus curiae brief in In re Kellogg Brown &

Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), one of the

principal cases comprising the circuit split on the question

presented.

Businesses often rely on their counsel to serve a

variety of legal and non-legal roles. And predictability as

to the confidentiality of communications with counsel is

paramount to ensuring frank and open disclosure to, and

proper legal advice from, counsel. Such predictability is

especially critical for businesses that operate across

jurisdictions and for small businesses that rely on a

limited number of employees to perform a wide array of

functions. The disagreement among the courts of appeals

regarding the proper test for determining whether dualpurpose communications are _ privileged creates

uncertainty. And this uncertainty hinders the business

community’s ability to operate effectively and efficiently.

SUMMARY OF ARGUMENT

This case concerns the circumstances under which the

attorney-client privilege protects communications

motivated by both legal and nonlegal purposes. As the

petitioner explains, the Ninth Circuit in the decision below

set out and applied a standard for such communications

that is profoundly at odds with the test that the D.C.

Circuit has applied for many years. The decision below

asserts that the differences between its standard and the

D.C. Cireuit’s test are not significant or outcomedeterminative. But the Ninth Circuit’s analysis on those

points only underscores exactly how different the tests

are. As the decision below shows, this case squarely

implicates the split: The Ninth Circuit expressly held that

the disputed attorney-client communications are not

privileged because the predominant purpose of the

communications was not legal advice. That is exactly the

analysis that the D.C. Circuit has held is improper.

The Court should seize this golden opportunity to

resolve the split and address the critically important

question presented. Numerous obstacles usually make it

difficult for this Court to cleanly address questions

regarding the scope of the attorney-client privilege.

Interlocutory appeals of privilege issues are rare. When

appellate courts do consider privilege issues, those issues

usually come in procedural wrappers—such as the

heightened standard of review for mandamus or the

harmlessness inquiry on appeal from final judgment—

that make it difficult (or unnecessary) to address the

privilege issue. This case presents no such obstacles.

With this clean vehicle, the Court can provide much

needed clarity to the district courts where litigation on

privilege issues usually occurs.

It is vitally important that this Court do so.

Uncertainty in the area of privilege law has particularly

pernicious consequences, as it may lead to less fulsome

disclosures to lawyers—or avoidance of lawyers

altogether—and thus less fulsome compliance with the

law.

Here, the uncertainty comes not only from the circuit

split, but also from the Ninth Circuit’s standard. That

standard is impossible to apply in practice. Courts,

lawyers, and clients will all struggle to identify the single,

predominant purpose of a communication. And the

premise that there is a clear dividing line between “legal”

and “nonlegal” purposes is itself questionable. If

precedent is any guide, drawing such distinctions is often

haphazard and counterintuitive, leading to greater

uncertainty for those relying on the confidentiality of

attorney-client communications.

Most fundamentally, the Ninth Circuit’s singlepurpose standard does not reflect the modern role that

lawyers play in advising businesses. Businesses

frequently call on lawyers to tackle problems that have

both legal and non-legal elements. For example, a

company may want to expand its market share, but faces

unfair-competition or deceptive-advertising issues. A

company may want to terminate an employee, but must

consider whether the non-compete provision in the

employee’s employment contract is enforceable. And so

on. The point is that legal issues often arise in analyzing

larger business issues. When legal and business issues

are discussed in the same communication, the reasons for

protecting the confidentiality of legal communications do

not suddenly evaporate.

ARGUMENT

I. The Court Should Resolve The Circuit Split On The Proper

Test For Determining Whether The Attorney-Client

Privilege Protects Communications With Multiple

Purposes.

The courts of appeals have adopted three distinct tests

that govern the privilege protections provided to dualpurpose client communications with attorneys. The Ninth

Circuit’s decision below amplifies the conflict, warranting

this Court’s review.

1. The Ninth Circuit held that the “primary-purpose

test” applies to dual-purpose communications.

Pet.App.6a. The natural implication of this holding, as the

court explained, is that a “dual-purpose communication

can only have a single ‘primary’ purpose.” Pet.App.4a.

The Ninth Circuit’s standard requires courts to balance

each possible motive for an _ attorney-client

communication. The communication is privileged only if

the legal purpose is the most significant. Pet.App.1la—

12a.

This reasoning is irreconcilable with the test that the

D.C. Circuit adopted in In re Kellogg Brown & Root, Inc.,

756 F.3d 754, 759-60 (D.C. Cir. 2014). Only by

misunderstanding that test did the Ninth Circuit conclude

that it had avoided a conflict with it. According to the

Ninth Circuit, the Kellogg test differs only “in truly close

cases”—like when the legal purpose is “just as

significant” as a nonlegal one. Pet.App.12a. Kellogg’s

holding is not so limited. Rather, in the D.C. Circuit, if

“obtaining or providing legal advice was one of the

significant purposes of the communication,” the

communication is privileged. Kellogg, 756 F.3d at 760

(emphasis added); accord FTC v. Boehringer Ingelheim

Pharm., Inc., 892 F.3d 1264, 1268 (D.C. Cir. 2018). As a

result, the Ninth Circuit’s standard conflicts with the D.C.

Circuit’s test.

The Ninth Circuit insisted there was no conflict

because the District Court had found that “the

predominate purpose of the disputed communications was

not to obtain legal advice.” Pet.App.12a. But that is the

precise analysis that Kellogg rejects. The D.C. Circuit

specifically instructed that it is “not correct for a court to

try to find the one primary purpose in cases where a given

communication plainly has multiple purposes.” Kellogg,

756 F.3d at 760 (emphasis in original).

The Ninth Circuit’s attempt to distinguish Kellogg on

its facts likewise fails. According to the Ninth Circuit,

Kellogg “dealt with the very specific context of corporate

internal investigations, and its reasoning does not apply

with equal force in the tax context.” Pet.App.lla. But

nothing in Kellogg restricts its holding in this way, and the

federal courts in the District of Columbia do not treat its

rule as confined to internal investigations. See, ¢.g.,

Boehringer Ingelheim, 892 F.3d at 1267 (applying

Kellogg’s rule to communications with in-house counsel

regarding settlement of patent dispute); Louise Trawma

Cir., LLC v. Dep't of Just., No. 20-3517, 2022 WL 278771,

at *9 (D.D.C. Jan. 30, 2022) (citing Kellogg’s rule when

assessing communications between a government agency

and their attorneys regarding asylum training). Despite

its contrary assurances, the decision below plainly creates

a split between the Ninth Circuit and the D.C. Circuit.

2. The Ninth Circuit’s standard also conflicts with the

Seventh Circuit’s decision in United States v. Frederick,

182 F.3d 496 (7th Cir. 1999). While the D.C. Circuit’s test

offers broader privilege protections than the Ninth

Circuit’s standard, both offer more than the Seventh

Circuit, which has held that “a dual-purpose document—

a document prepared for use in preparing tax returns and

for use in litigation—is not privileged.” Id. at 501; see also

Pet.App.5a n.2 (suggesting that the Ninth Circuit case law

“does not go so far” to “suggest that dual-purpose

communications in the tax advice context can never be

privileged”).

While the Ninth Circuit held that some of the dualpurpose communications at issue were privileged, the

Seventh Circuit would have ordered Petitioner to produce

all the communications at issue. The only exception to the

Seventh Circuit’s categorical rule is for attorney-client

communications regarding an active audit that include

“statutory interpretation or case law’—a significantly

smaller set of privileged communications than those

protected under either the Ninth Circuit’s standard or the

D.C. Circuit’s test. Frederick, 182 F.3d at 502.

3. The federal courts of appeals have accordingly

adopted three competing privilege regimes regarding

dual-purpose attorney-client communications, at least in

the context of tax preparation. Consider a communication

from an attorney that advises a client about the strength

of an argument that a regulation entitles the client to a

particular deduction, and also discusses the size of the

potential deduction in advising whether to adopt the tax

position. The Ninth Circuit treats the interpretation of

the regulation as a legal purpose. See Pet.App.4a. And it

would presumably treat the calculation of the deduction

as “preparation of tax returns” and thus nonlegal.

Pet.App.3a, lla n.5. That type of communication, one

where the legal and nonlegal purposes are both significant

and intertwined, presumably happens every day.

Currently, however, its privilege treatment would be

starkly different in Los Angeles, Washington, and

Chicago.

In the D.C. Circuit, so long as one of the significant

purposes for the communication was legal advice, the

communication is privileged. Kellogg, 756 F.3d at 759-60.

By contrast, the Ninth Circuit would afford privilege

protection only if a court found legal advice to be “the”

primary purpose for the communication. Pet.App.10a.

And, in the Seventh Circuit, the same communication is

not privileged if any purpose for the communication was

non-legal. Frederick, 182 F.3d at 500-01. The Court

should resolve this pronounced circuit split.

II. This Case Is A Rare, Golden Opportunity To Resolve The

Question Presented.

This case presents an exceptionally clean—and

exceptionally rare—opportunity to squarely address the

question presented. It is no accident that it took until 2021

for the Nation’s largest circuit court to do so. The Court

should capitalize on this golden opportunity to announce

a precise and predictable test and prevent further damage

from the lack of uniformity among the circuit courts.

1. This case is a rare opportunity to address an

important question of privilege law on direct appeal.

Under Mohawk Industries, Inc. v. Carpenter, 558 U.S.

100 (2009), parties cannot immediately appeal most

privilege determinations, no matter how consequential.

Id. at 103. As the Petition notes, some parties may

nonetheless seek interlocutory appeal under 28 U.S.C.

§ 1292(b). Pet. at 28. But such an appeal requires both

that a district court certify the question for appeal and

that the court of appeals exercise its discretion to accept

it. See In re The City of New York, 607 F.3d 923, 933 (2d

Cir. 2010) (rejecting appeal under 28 U.S.C. § 1292(b) as

an “adequate means” to challenge privilege

determinations).

An aggrieved party can also petition for a writ of

mandamus in the courts of appeals under the All Writs

Act. See 28 U.S.C. § 1651(a). But “[aJn erroneous district

court ruling on an attorney-client privilege issue by itself

does not justify mandamus.” Kellogg, 756 F.3d at 762.

Rather, a mandamus petitioner “must show that his right

to the issuance of the writ is ‘clear and indisputable.” Id.

(quoting Cheney v. U.S. Dist. Ct. for the Dist. of Columbia,

542 U.S. 367, 381 (2004)). Accordingly, even meritorious

assertions of privilege may often not receive full review in

a mandamus posture.

Even when a court of appeals grants a mandamus

petition, as the D.C. Circuit did in Kellogg, cases on

mandamus review in the courts of appeals present

obstacles to this Court’s review. A circuit court

addressing a mandamus petition necessarily makes other

discretionary determinations that complicate subsequent

review by this Court. See Cheney, 542 U.S. at 381

(requiring the issuing court to be “satisfied that the writ

is appropriate under the circumstances”). And a party

that is unsuccessful on mandamus review may struggle to

show whether it lost below because of the legal question

itself rather than one of the underlying equitable factors

that barred relief.

True, a party unhappy with a privilege determination

can defy a discovery order and sometimes appeal any

contempt order imposed by the court. But that relief—

limited as it is—is not even available for a party who

sought but failed to overcome an assertion of privilege.

For a losing party seeking documents, there is no way to

defy a court’s denial.

Moreover, immediate appeal rights are not

categorically available. While a party can immediately

appeal a criminal contempt order, there is no right to

immediately appeal a civil contempt order. See Mohawk

Indus., 558 U.S. at 111; Church of Scientology of Cal. v.

United States, 506 U.S. 9, 18 n.11 (1992) (recognizing that

only a non-party can immediately appeal a civil contempt

order). And “the choice of sanctions—civil or criminal—

is vested in the discretion of the District Court.” City of

New York, 607 F.3d at 934; see id. (“conclud[ing], along

with [its] sister Circuits, that the uncertainty of seeking a

criminal contempt order bespeaks its inadequacy” as a

means of appellate review (internal quotations omitted)).

So a district court can essentially insulate itself from

review by imposing an “onerously coercive civil contempt

sanction with no means of review until the perhaps far

distant day of final judgment.” Jd. (quoting 15B Charles

Alan Wright, Arthur R. Miller, & Edward C. Cooper,

Federal Practice and Procedure § 3914.28 (2d ed. 1992)).

This uncertainty disproportionally hinders those

parties who cannot afford the risk. “Institutional litigants

10

that regularly face an important discovery problem are

most likely” to “invite such a sanction for the purpose of

taking an immediate appeal.” 15B Charles Alan Wright,

Arthur R. Miller, & Edward C. Cooper, Federal Practice

and Procedure § 3914.23 (2d ed. April 2022 update).

Individual citizens, sole proprietorships, and small

businesses—part of amicus’ membership—suffer most

from a rule that preferences the privilege concerns of

repeat litigation players.

2. That leaves review from final judgment. Of course,

an adverse privilege determination is just as likely to

burden the winning party in a lawsuit as the losing party.

And, practically speaking, most cases settle before trial or

summary judgment, depending on the outcome of

discovery. See generally Shari S. Diamond & Jessica M.

Salerno, Reasons for the Disappearing Jury Trial:

Perspectives From Attorneys and Judges, 81 La. L.

Rev. 119, 122 (2020) (“[TJhe percentage of civil cases

disposed of by jury trial decreased from approximately

5.5% in 1962 to 1.2% by 2002 and to 0.8% by 2013.”).

Regardless, at final judgment, a party must primarily

concern itself with the actual merits of the underlying

dispute. A privilege issue, even one that presents an

important legal issue, may well not merit briefing on

appeal. See Makiel v. Butler, 782 F.3d 882, 897-98 (7th

Cir. 2015) (noting that “when appellate judges address

professional education programs on appellate practice,

they almost always stress this need for careful selection

of just a few issues on appeal”).

Harmlessness analysis further frustrates this Court’s

review. When considering an appeal from final judgment,

courts of appeals sometimes sidestep review of privilege

determinations if they would not have changed the

outcome. See, eg., Adams v. Mem’ Hermann, 973 F.3d

11

348, 350-51 (Sth Cir. 2020) (declining to analyze if

excluding testimony based on attorney-client privilege

was proper because any error would have been harmless).

The foreclosure of normal avenues for plenary appellate

review drastically reduces the opportunities for

considered decisions on privilege issues by the federal

courts of appeals and therefore also this Court.

3. This Petition thus presents a rare procedurally

clean vehicle to address an important question of privilege

law. Interlocutory review was available because, as the

recipient of a grand-jury subpoena, Petitioner was treated

as a nonparty who could immediately appeal a civil

contempt order. See Byrd v. Reno, 180 F.3d 298, 300

(D.C. Cir. 1999); Church of Scientology of Cal., 506 U.S. at

18 n.11l. As a result, this case squarely presents the

privilege question while it is still live and not mitigated by

settlement or unrelated case developments. Nor is the

question here presented through the filter of any

discretionary findings or deferential standards of review.

The Court may not have such another clean

opportunity to address the question presented for many

years. After all, it has been nearly 25 years since the

Court last considered the scope of the attorney-client

privilege. See Swidler & Berlin v. United States, 524 U.S.

399 (1998).? And because the bounds of the attorney-client

privilege in federal court are generally governed by the

common law as interpreted by the federal courts and,

ultimately, this Court, see Fed. R. Evid. 501, the law will

2 Although the Court analyzed the attorney-client privilege in United

States v. Jicarilla Apache Nation, the question presented in that case

involved not the extent of the privilege but whether the “fiduciary

exception” applied to a particular relationship between the United

States and the Jicarilla Apache Nation tribe. 564 U.S. 162, 178-87

(2011).

12

remain fixed absent further judicial review. Legislative

intervention remains extremely unlikely. Given the dire

need for a clear, precise, and uniform answer to the

question presented, the Court should take this golden

opportunity to address the issue while it is presented

cleanly.

III. The Decision Below Creates Profound Uncertainties

Regarding The Attorney-Client Privilege.

The attorney-client privilege is a doctrine animated by

the incentives it creates. It exists “to encourage clients to

make full disclosure to their attorneys.” Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981) (quoting Fisher v.

United States, 425 U.S. 391, 408 (1976)). “The privilege

recognizes that sound legal advice or advocacy serves

public ends and that such advice or advocacy depends

upon the lawyer’s being fully informed by the client.” Id.

Accordingly, “for the attorney-client privilege to be

effective, it must be predictable.” United States v.

Jicarilla Apache Nation, 564 U.S. 162, 183 (2011). “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.” Upjohn, 449 U.S. at

393. The decision below fosters uncertainty in two critical

ways.

1. The main source of uncertainty is the now

apparent three-way split among the courts of appeals. To

state the obvious, companies regularly face the prospect

of litigation and government investigation in several

jurisdictions depending on their operations and where

they sell products or services. To take a simple example,

a pharmaceutical company could face an antitrust

investigation by the Federal Trade Commission

regarding a reverse-payment patent settlement. See

generally FTC v. Actavis, Inc., 570 U.S. 136 (2018). It is

13

not unusual for the FTC, or other federal agencies, to

initiate subpoena enforcement proceedings in the D.C.

federal courts. See, e.g., Boehringer Ingelheim, 892 F.3d

1264. A civil antitrust case could arise from the same

settlement in a different jurisdiction. And there could also

be patent litigation regarding the same underlying

patents in yet a third jurisdiction.

The risk of inconsistent treatment of privilege issues

is heightened by the prospect of litigation in state court or

investigations by state authorities. Many state courts

have adopted a primary purpose test similar to Kellogg,

while their federal counterparts apply a different

standard. See, eg., Am. Zurich Ins. Co. v. Mont.

Thirteenth Jud. Dist. Ct., 280 P.38d 240, 245 (Mont. 2012)

(holding that the attorney-client privilege protects

confidential communications “necessary to obtain

informed legal advice”); see also 1 Restatement (Third) of

the Law Governing Lawyers § 72 (2000), Reporter’s Note,

at 554 (“In general, American decisions agree that the

privilege applies if one of the significant purposes of a

client in communicating with a lawyer is that of obtaining

legal assistance.”). While this Court does not control how

state courts apply the common law of privilege, its

decisions on that subject nevertheless provide leading and

highly persuasive guidance, promoting national

uniformity. See Kenneth S. Broun, Giving Codification a

Second Chance—Testimonial Privileges and the Federal

Rules of Evidence, 53 Hastings L.J. 769, 785 (2002) (“The

Upjohn case has been particularly significant in the state

court system.... Not all state courts have accepted the

Upjohn approach but many have.”).

Litigation in different fora is not unusual for American

businesses, and the possible application of different rules

is not unusual for the courts. What is untenable, however,

14

is that the same underlying communication could have

different privilege protections in different federal

jurisdictions. It is bad enough that there will be different

outcomes. For purposes of the privilege, the more pointed

problem is that the accompanying uncertainty could chill

the provision of legal advice. See Swidler & Berlin, 524

U.S. at 407-08 (“[W]ithout the privilege, the client may

not have made such communications in the first place.”’).

2. The second way that the Ninth Circuit’s standard

fosters unpredictability is also familiar to this Court. A

test that is “difficult to apply in practice” yields

“unpredictability [in] its application.” Upjohn, 449 U.S. at

393. The Ninth Circuit’s standard is not just difficult to

apply, but often “inherently impossible.” Kellogg, 756

F.3d at 759. As then-Judge Kavanaugh explained in

Kellogg:

It is often not useful or even feasible to try to

determine whether the purpose was A or B when

the purpose was A and B. Itis thus not correct for

a court to presume that a communication can have

only one primary purpose.

Id. An “inherently impossible task” is bound to yield

arbitrary and unpredictable results. And a task that is

“inherently impossible” for judges is completely

unworkable for run-of-the-mill attorneys and, most

importantly, their clients, who are untrained in the metes

and bounds of privilege law.

That is doubly so because the line between a business

purpose and a legal purpose is frequently blurry. For

example, most litigators would be surprised to hear that

helping a client “negotiate a settlement on favorable

financial terms” is “a business purpose.” Boehringer

Ingelheim, 892 F.3d at 1267. Lawyers are frequently

15

called on to perform that function. To be sure, as in

Boehringer Ingelheim itself, the D.C. Circuit’s test asks a

court to determine what legal purposes are served by a

communication. But because the legal purpose need only

be “one of the significant purposes of the communication,”

id. at 1267 (emphasis in original), the inquiry is far more

predictable.

This Court has rejected vague, ex-post balancing tests

for evaluating the attorney-client privilege because such

tests cannot sufficiently define the contours of the

privilege to assure clients ahead of time that their

communications will remain confidential. Swidler &

Berlin, 524 U.S. at 409; see Jicarilla Apache Nation, 564

U.S. at 183 (rejecting a test for application of the

“fiduciary exception” to the attorney-client privilege

because it was unpredictable). The Court should grant

the petition and do the same here.

IV. The Decision Below Disregards The Realities Facing

Modern Businesses And _ Discourages Informed

Decisionmaking.

The D.C. Circuit’s Kellogg test reflects the reality that

legal issues permeate the various challenges facing

American business. As this Court observed in 1981, a

“vast and complicated array of regulatory legislation

confront[s] the modern corporation.” Upjohn, 449 U.S. at

392. That morass has hardly abated. See generally Neil

Gorsuch, A Republic, If You Can Keep It 242 (2019)

(noting the proliferation of federal criminal violations and

“the hundreds of thousands of criminal penalties federal

agencies impose through their regulations”).

To navigate this dense legal thicket, American

businesses have come to rely on lawyers to provide legal

advice about business problems as they develop and

change in real time. The Ninth Circuit’s single-purpose

16

standard rests on an outmoded (if not completely

fictional) conception of the attorney-business client

relationship. Pet.App.4a. Just as the Upjohn Court

recognized that the “control group” standard was

incompatible with the realities of corporate legal practice,

see 449 U.S. at 391, the Court should grant review here

and reject the Ninth Circuit’s unrealistic single-purpose

standard.

1. In the real world, corporate decisionmaking is

complex, fluid, and dynamic. It involves multiple parties

communicating for multiple purposes about mixed legal

and non-legal issues of varying and changing importance.

Imagine a CEO who receives news of a crisis confronting

her company: there has been an explosion at one of the

company’s manufacturing plants. The problems facing

the company are multifaceted. The CEO needs direct

legal advice from the company’s general counsel about the

company’s potential legal exposure. Line executives for

the plant and business line need to be consulted, both

about the explosion and about disruptions to the business.

The head of human resources should be contacted to

advise and assist the personnel at the plant. There likely

will be financial ramifications to the company, and so the

Chief Financial Officer will be consulted. And there could

be important public-relations issues that result as well.

Significant legal issues are likely to arise in connection

with all of these lines of communication. The line

executives’ views on the damage to the plant or

community would inform the general counsel’s

perspective on the company’s potential liability. The

human-resources issues could quickly turn to questions of

lawsuits and inquiries about the company’s compliance

with workplace regulations. The financial impact on the

company may well involve disclosures to lenders and

17

shareholders (especially if the company is publicly

traded). And any public statements by the company could

affect future litigation or potentially trigger a defamation

action.

Lawyers would be consulted on those issues as needed

throughout the crisis, and the need and salience of any

lawyer’s involvement would change with the issue and the

context. In those discussions, the legal and business

considerations affecting the client will often become

intertwined and discussed together. The rules of

professional ethics encourage lawyers to give clients

advice that considers “moral, economic, social and

political factors” in addition to legal issues. ABA Model

Rules of Professional Conduct, Rule 2.1 (“In rendering

advice, a lawyer may refer not only to law but to other

considerations such as moral, economic, social and

political factors, that may be relevant to the client’s

situation.”). This advice is desirable and necessary. The

legal issues facing a business are not siloed from the

practical ones.

Under the Ninth Circuit’s standard, however, the only

communications that would be protected would be those

where the primary purpose was legal advice. Pet.App.10a.

In the above scenario, the communications involved

business issues that also had important legal dimensions.

Litigants will claim that “the” primary purposes of most

of the communications with other corporate officers—the

CFO, or head of public relations, or line executives—were

business-related, not legal. Pet.App.10a. Indeed, that

would likely be the correct application of the Ninth

Circuit’s standard.

2. But this is the wrong result for businesses, their

counsel, and the public ends that the privilege serves. See

generally, e.g., Upjohn, 449 U.S. at 389. A lawyer’s ability

18

to provide sound legal advice and advocate effectively on

the client’s behalf “depends upon the lawyer’s being fully

informed by the client.” Jd. The Ninth Circuit’s standard

“discourag[es] the communication of relevant information

by employees of the client to attorneys seeking to render

legal advice to the client corporation.” Jd. at 392. It

accordingly runs contrary to “the very purpose of the

privilege.” Jd.

Worse yet, it puts clients in the place of determining

what information to share with their legal counsel. But

“[tlhe first step in the resolution of any legal problem is

ascertaining the factual background and sifting through

the facts with an eye to the legally relevant.” Jd. at 390-

91. One aspect of a lawyer’s professional judgment is

determining which information is relevant and important

to the underlying legal issue. ABA Model Rules of

Professional Conduct, Rule 1.6, emt. {1 2. The Ninth

Circuit’s standard makes that impossible. Out of fear that

providing too many irrelevant and unimportant facts may

lead a later-reviewing court to conclude that a non-legal

purpose primarily motivated the communication, legally

untrained clients may omit important facts that they

erroneously assume are legally irrelevant.

The practical import of the Ninth Circuit’s standard is

that businesses and non-lawyers will be less likely to seek

legal advice, especially from in-house counsel. Even when

an employee with a clear purpose of seeking legal advice

communicates with an attorney, if a court later

determines that a non-legal purpose was predominant in

the employee’s mind, the communication will be

discoverable. Pet.App.4a, 12a. The same holds true if a

lawyer responds with legal advice but also includes a

greater amount of business advice. Given this cloud that

hangs over dual-purpose communications under the

19

Ninth Circuit’s standard, the client may choose not to

communicate with the attorney at all. Swidler & Berlin,

524 U.S. at 407-08; Fisher, 425 U.S. at 403.

3. That lack of communication has harmful

consequences. First, “businesses would be less likely to

disclose facts to their attorneys and to seek legal advice.”

Kellogg, 756 F.3d at 759. That “would ‘limit the valuable

efforts of corporate counsel to ensure their client’s

compliance with the law.” Id. (quoting Upjohn, 449 U.S.

at 392). So the public purpose animating the privilege’s

existence will be undermined. See Upjohn, 449 USS. at

389.

Second, the Ninth Circuit’s single-purpose standard

imposes additional costs on the business community. Only

granting privilege protections to communications where

legal advice was the primary purpose guarantees

inefficiency. Communications with lawyers will need to

become siloed, with information needlessly repeated or

lost in the process. In-house counsel, whose

responsibilities often include a multitude of non-legal

tasks, will be marginalized and provide less value to their

employers. Thomas O’Connor, When You Come to a Fork

in the Road, Take It: Unifying the Split in New York’s

Analysis of In-House Attorney-Client Privilege, 25 J.L.

& Pol’y 487, 455-58 (2016) (Note & Comment) (discussing

how, in addition to legal roles, in-house counsel must often

perform corporate secretarial, human_resources,

governmental affairs, compliance, and corporate officer

responsibilities); see Deborah A. DeMott, The Discrete

Roles of General Counsel, 74 Fordham L. Rev. 955, 957-

58 (2005). Indeed, companies may decide to opt for the

advice of outside counsel more frequently because they

traditionally perform more discrete roles that are easier

to cabin. See O’Connor, supra, at 455.

20

While large companies may be able to absorb these

costs, small businesses cannot. “Small businesses are the

lifeblood of the U.S. economy: they create two-thirds of

net new jobs and drive U.S. innovation and

competitiveness. A new report shows that they account

for 44 percent of U.S. economic activity.” Press Release,

U.S. Small Business Administration, Small Businesses

Generate 44 Percent Of U.S. Economic Activity (Jan. 30,

2019), https://tinyurl.com/2p82wmvv. But they are most

likely to rely on a single lawyer, be the lawyer in-house or

external, to perform multiple functions. See Swidler &

Berlin, 524 U.S. at 407-08 (“Many attorneys act as

counselors . . . of small businesses who may regularly

consult their attorneys about a variety of problems arising

in the course of the business.”). Small businesses bear an

outsized burden under the Ninth Circuit’s standard.

In sum, the Ninth Circuit’s single-purpose standard

discourages clients from seeking legal advice. This

chilling effect restricts corporate counsel’s ability to

advise their company and reduces the number of

conversations that company employees have with

lawyers—both of which run counter to the objectives of

the attorney-client privilege. See Upjohn, 449 U.S. at 392;

Fisher, 425 U.S. at 403. The ultimate result may be worse

legal compliance.

* * *

The petition for a writ of certiorari affords the Court a

golden opportunity to resolve a split among the federal

courts of appeals on an important privilege issue that

arises every day for businesses across the country. The

Ninth Circuit’s approach to that issue not only creates

unpredictable results, it fails to reflect the realities of

every-day discussions that lawyers have with their

business clients. It thus undermines the attorney-client

21

privilege and its underlying goal of fostering legal

compliance.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition.

Respectfully submitted,

JENNIFER B. DICKEY LISA S. BLATT

JONATHAN D. URICK Counsel of Record

U.S. CHAMBER LITIGATION WILLIAM T. BURKE

CENTER JOHN S. WILLIAMS

1615 H Street, N.W. JESSE T. CLAY

Washington, DC 20062 KEES D. THOMPSON*

WILLIAMS & CONNOLLY

LLP

680 Maine Avenue, S.W.

Washington, DC 20024

(202) 484-5000

lblatt@we.com

Counsel for Amicus Curiae

June 1, 2022

* Admitted in New York and practicing law in the District of

Columbia pending application for admission to the D.C. Bar under the

supervision of bar members pursuant to D.C. Court of Appeals Rule

49(c)(8).