Amicus Curiae Brief — In Re Grand Jury

No. 21-1397

In the Supreme Court of the United States

IN RE GRAND JURY

ON 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, ASSOCIATION

OF CORPORATE COUNSEL, AND SECURITIES

INDUSTRY AND FINANCIAL MARKETS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, DC 20062

SUSANNA MCDONALD

AMY CHAI

THE ASSOCIATION OF

CORPORATE COUNSEL

1001 G Street, N.W., Suite

300W

Washington, DC 20001

KEVIN CARROLL

THE SECURITIES

INDUSTRY & FINANCIAL

MARKETS ASSOCIATION

1099 New York Avenue, N.W.

Washington, DC 20001

WILLIAM T. BURKE

JOHN S. WILLIAMS

Counsel of Record

JESSE T. CLAY

KEES D. THOMPSON

SUMER GHAZALA

JACOB L. BURNETT*

WILLIAMS & CONNOLLY

LLP

680 Maine Avenue, S.W.

Washington, DC 20024

(202) 434-5000

jwilliams@wc.com

* Admitted in Indiana 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).

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................. 3

ARGUMENT .................................................................... 5

I. The Significant-Purpose Test Serves the

Purposes of the Attorney-Client Privilege

and the Attorney-Client Relationship................. 5

A. The Attorney-Client Privilege ................. 5

B. The Attorney-Client Relationship ........... 9

II. The Significant-Purpose Test Reflects the

Legal Needs of Modern American Business.... 14

III. The Tax Context Does Not Warrant a Unique

Rule. ...................................................................... 24

CONCLUSION ............................................................... 28

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Buckley LLP v. Series 1 of Oxford Insurance

Co., 876 S.E.2d 248 (N.C. 2022).............................. 21

Commissioner v. Banks, 543 U.S. 426 (2005) ............ 10

Commodity Futures Trading Commission v.

Weintraub, 471 U.S. 343 (1985) ..................... 6, 7, 12

District Attorney’s Office for the Third

Judicial District v. Osborne, 557 U.S. 52

(2009) ......................................................................... 10

Evergreen Trading, LLC v. United States,

80 Fed. Cl. 122 (2007) ........................................ 26, 27

Fisher v. United States, 425 U.S. 391 (1976) ............ 6, 7

FTC v. Boehringer Ingelheim Pharmacies,

Inc., 892 F.3d 1264 (D.C. Cir. 2018) .......... 6, 8, 9, 18

Hunt v. Blackburn, 128 U.S. 464 (1888) ....................... 6

In re Kellogg Brown & Root, Inc.,

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

Jaffee v. Redmond, 518 U.S. 1 (1996) ............................ 7

Jerman v. McNellie, Rini, Kramer & Ulrich

LPA, 559 U.S. 573 (2013) ........................................ 10

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ........................ 16

Matrixx Initiatives, Inc. v. Siracusano,

563 U.S. 27 (2011) .................................................... 20

Mayo Foundation for Medical Education &

Research v. United States, 562 U.S. 44

(2011) ................................................................... 25, 26

Merck & Co. v. United States,

652 F.3d 475 (3d Cir. 2011) ..................................... 26

Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100 (2009) .................................................... 7

III

Page

Cases—continued:

Omnicare, Inc. v. Laborers District Council

Construction Industry Pension Fund,

575 U.S. 175 (2015) .................................................. 20

Onishea v. Hopper,

171 F.3d 1289 (11th Cir. 1999) ................................ 13

Quill Corp. v. North Dakota,

504 U.S. 298 (1992) .................................................. 25

Schering-Plough Corp. v. United States,

651 F. Supp. 2d 219 (D.N.J. 2009) ......................... 26

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) .............................................. 25

Stockton v. Ford, 52 U.S. 232 (1850)............................ 11

Swidler & Berlin v. United States,

524 U.S. 399 (1998) .......................................... 7, 8, 17

Trammel v. United States,

445 U.S. 40 (1980) .......................................... 6, 11, 26

United States v. Forma,

42 F.3d 759 (2d Cir. 1994) ....................................... 25

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ................................................ 7, 8

United States v. United Shoe Machinery

Corp., 89 F. Supp. 357 (D. Mass. 1950) ........... 13, 16

United States v. Zolin, 491 U.S. 554 (1989) .................. 7

Upjohn Co. v. United States,

449 U.S. 383 (1981) ......................................... passim

Zenith Radio Corp. v. Radio Corp. of America,

121 F. Supp. 792 (D. Del. 1954) .............................. 13

Other Authorities:

Robert C. Bird & Stephen Kim Park, Turning

Corporate Compliance into Competitive

Advantage, 19 U. Pa. J. Bus. L. 285 (2017)........... 16

IV

Page

Other Authorities—continued:

Bryson P. Burnham, The Attorney–Client

Privilege in the Corporate Arena,

24 Bus. Law. 901 (1969) .......................................... 16

Anthony J. Casey & Anthony Niblett, The

Death of Rules and Standards,

92 Ind. L.J. 1401 (2017) ........................................... 21

Deborah A. DeMott, The Discrete Roles of

General Counsel, 74 Fordham L. Rev. 955

(2005) ................................................................... 15, 16

Neil Gorsuch, A Republic, If You Can Keep It

(2019) ................................................................... 16, 17

Stephanie Hoffer & Christopher J. Walker,

The Death of Tax Court Exceptionalism,

99 Minn. L. Rev. 221 (2014) .................................... 25

Jurisdictional Rules Comparison Charts, Am.

Bar Ass’n, https://tinyurl.com/28ba44vv ................ 10

Robert A. Kagan & Robert Eli Rosen, On the

Social Significance of Large Law Firm

Practice, 37 Stan. L. Rev. 399 (1985)..................... 14

Lorelei Laird, California Approves Major

Revision to Attorney Ethics Rules, Hewing

Closer to ABA Model Rules, ABA J.

(Oct. 2, 2018, 2:20 PM),

https://tinyurl.com/ypycdkdh ................................. 10

Model Code of Evid., R. 210 cmt.

(Am. Law Inst. 1942) ............................................... 16

V

Page

Other Authorities—continued:

Model Rules of Prof’l Conduct

(Am. Bar Ass’n 2022)

1.0 .............................................................................. 15

1.6 cmt. 2 .......................................................... passim

2.1 ........................................................................ 11, 12

2.1 cmt. 1 ................................................................... 11

2.1 cmt. 2 ................................................. 12, 18, 21, 24

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 437 (2016) ................................. 14, 15

Oxford English Dictionary

(2d ed. 1989) ............................................................. 13

Jennifer M. Pacella, The Regulation of

Lawyers in Compliance,

95 Wash. L. Rev. 947 (2020) ................. 14, 15, 16, 17

Gregg D. Polsky & Adam H. Rosenzweig, The

Up-C Revolution, 71 Tax L. Rev. 415 (2018) ........ 27

Restatement (Third) of the Law Governing

Lawyers (2000)

§ 1 cmt. b................................................................... 10

§ 68 .............................................................................. 6

§ 69 cmt. d................................................................... 6

§ 72, Reporter’s Note to cmt. c. ................. 4, 8, 9, 13

The Room Where It Happens, on Hamilton

(Atl. Recording Corp. 2015).................................... 19

Michael L. Schler, Basic Tax Issues in

Acquisition Transactions,

116 Penn St. L. Rev. 879 (2012) ............................. 27

Webster’s Third International Dictionary

(1986) ......................................................................... 13

In the Supreme Court of the United States

IN RE GRAND JURY

ON 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, ASSOCIATION

OF CORPORATE COUNSEL, AND SECURITIES

INDUSTRY AND FINANCIAL MARKETS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE 1

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, like this one,

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

Pursuant to Rule 37.6, amici affirm that no counsel for any party

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

amici, their members, or their counsel have made any monetary

contributions intended to fund the preparation or submission of this

brief.

1

(1)

2

that raise issues of concern to the Nation’s business

community.

The Association of Corporate Counsel (“ACC”) is the

leading global bar association that promotes the common

professional and business interests of in-house counsel.

ACC has over 40,000 members who are in-house lawyers

employed by over 10,000 corporations, associations, and

other organizations in more than 80 countries. Founded

as the American Corporate Counsel Association in 1981,

ACC has grown from a small organization of in-house

counsel to a worldwide network of legal professionals,

focused on delivering a mix of relevant and timely

services, including information, education, networking

opportunities, and advocacy. ACC has long sought to aid

courts, legislatures, regulators, and other law or policymaking bodies in understanding the role and concerns of

in-house counsel, and is a frequent amicus participant at

the United States Supreme Court and high courts

globally.

The Securities Industry and Financial Markets

Association (“SIFMA”) is the leading trade association

for broker-dealers, investment banks, and asset

managers operating in the United States and global

capital markets. On behalf of the industry’s one million

employees, SIFMA advocates on legislation, regulations,

and business policies affecting retail and institutional

investors, equity and fixed income markets, and related

products and services. SIFMA serves as an industry

coordinating body to promote fair and orderly markets,

informed regulatory compliance, and efficient market

operations and resiliency. SIFMA also provides a forum

for industry policy and professional development. With

offices in New York and Washington, D.C., SIFMA is the

3

United States regional member of the Global Financial

Markets Association.

Amici are particularly interested in this case because

of the impact it will have both on the ability of lawyers to

give legal advice and on the ability of businesses to receive

it. The Chamber and ACC have participated together as

amici in other cases addressing privilege protections of

dual-purpose communications. See, e.g., Br. of Amicus

Curiae, In re Kellogg Brown & Root, Inc., No. 14-5055,

2014 WL 1091038 (D.C. Cir. Mar. 19, 2014). Amici

continue to participate in such cases because both they

and their members have a strong interest in a predictable

privilege standard for dual-purpose communications.

This predictability is necessary to ensure the full and

frank communication between lawyers and their clients

that effective legal practice requires. A standard that

protects dual-purpose communications when a significant

purpose of the communication is obtaining or providing

legal advice guarantees predictability. For the reasons

given by petitioner, and those set forth below, the Ninth

Circuit erred in recognizing a privilege test for dualpurpose communications that seeks to identify the

primary purpose of the communication.

INTRODUCTION AND SUMMARY OF ARGUMENT

A salesperson comes to the company’s general counsel

with a problem. A significant customer with a long-term

contract wants to change the terms of the deal. The

salesperson is looking for legal advice: Do the changes

requested by the customer violate the law? Do they

require a written amendment to the contract and how

could that be effectuated? And would they undermine

other contracts this customer has with the business? At

the same time, the salesperson is frustrated. It took

weeks for this contract to be negotiated, and the sales

4

manager is not going to be happy with any revisions. And

the salesperson’s commissions could be affected by one of

the changes proposed by the customer. The salesperson

is thinking about offering the customer other

accommodations.

According to the Ninth Circuit, the salesperson’s

request for legal advice would only be privileged if the

“single ‘primary’ purpose” of the communication was

legal. Pet.App.4a. But privilege protections should not

depend on an exegesis of how long the salesperson

lingered on the personal issues animating the request for

advice, or the order in which the issues were presented, in

an attempt to divine some metaphysical “primary”

purpose to the request for legal advice.

Instead, a request for legal advice should be privileged

so long as “one of the significant purposes” of the

communication was legal advice. In re Kellogg Brown &

Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014); accord

Restatement (Third) of the Law Governing Lawyers § 72

(2000), Reporter’s Note to cmt. c at 554 (noting that “the

privilege applies if one of the significant purposes of a

client in communicating with a lawyer is that of obtaining

legal assistance”).

This significant-purpose test is

consistent with the purposes of the privilege in making

sure that lawyers receive the kind of “full and frank

communication” from their clients that allow them to

provide complete legal advice. E.g., Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981).

For example, the salesperson may not realize it, but

the seemingly “nonlegal” issues at play could be critically

important for the lawyer to provide competent legal

advice to the company. The manager’s unhappiness could

reveal an issue with the company’s practices under

antitrust or consumer-protection laws. The salesperson’s

5

worries about commissions could reveal an ambiguity in

the wording of contractual provisions or corporate

policies. And any half-measures or accommodations the

salesperson is considering could expose the company to

liability down the road.

The significant-purpose test also reflects the realities

of how businesses and their lawyers operate today.

Business clients require their counsel, especially in-house

counsel, to perform a wide range of tasks on a daily basis.

A review of examples that amici’s members confront

every day underscores that the purposes of the attorneyclient privilege are best served by a test that looks only to

whether a significant legal purpose motivated an

attorney-client communication. These examples also

show how the Ninth Circuit’s standard puts judges in the

impossible role of discerning a single “primary” purpose

for communications and the negative effects that can have

on the provision of legal advice in real time.

Lastly, the tax context in which this case arises does

not merit different consideration. Courts, including this

one, regularly recognize that the tax context is not

necessarily unique.

The purposes underlying the

attorney-client privilege apply with equal force in the tax

context.

ARGUMENT

I.

The Significant-Purpose Test Serves the Purposes of the

Attorney-Client Privilege and the Attorney-Client

Relationship.

A.

The Attorney-Client Privilege

1. The “oldest of the privileges for confidential

communications known to the common law,” Upjohn, 449

U.S. at 389, the attorney-client privilege shields from

disclosure confidential communications made for the

6

purpose of obtaining legal advice, e.g., Fisher v. United

States, 425 U.S. 391, 403 (1976); Restatement (Third) § 68.

It protects communications, not the underlying facts

themselves or a client’s knowledge of them. Restatement

(Third) § 69 cmt. d; see, e.g., FTC v. Boehringer Ingelheim

Pharms., Inc., 892 F.3d 1264, 1268 (D.C. Cir. 2018) (noting

that privilege does not prevent “discovery of the

underlying facts and data … [or] of pre-existing business

documents”).

The attorney-client privilege serves the “broader

public interests in the observance of law and the

administration of justice” that it “promote[s].” Upjohn,

449 U.S. at 389; accord Commodity Futures Trading

Comm’n v. Weintraub, 471 U.S. 343, 348 (1985). The

privilege accordingly places a “seal of secrecy upon

communications between client and attorney” because

legal advice “can only be safely and readily availed of

when free from the consequences or the apprehension of

disclosure.” Hunt v. Blackburn, 128 U.S. 464, 470 (1888);

see Upjohn, 449 U.S. at 389 (“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.”).

Self-censorship by clients robs the privilege of its

function. “The lawyer-client privilege rests on the need

for the advocate and counselor to know all that relates to

the client’s reasons for seeking representation if the

professional mission is to be carried out.” Trammel v.

United States, 445 U.S. 40, 51 (1980). “As a practical

matter, if the client knows that damaging information

could more readily be obtained from the attorney

following disclosure than from himself in the absence of

disclosure, the client would be reluctant to confide in his

lawyer and it would be difficult to obtain fully informed

7

legal advice.” Fisher, 425 U.S. at 403. Put simply,

“without the privilege, the client may not have made such

communications in the first place.” Swidler & Berlin v.

United States, 524 U.S. 399, 408 (1998). As this Court has

often noted, the privilege cultivates “full and frank

communication between attorneys and their clients.”

Upjohn, 449 U.S. at 389; accord United States v. Jicarilla

Apache Nation, 564 U.S. 162, 169 (2011); Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100, 108 (2009); Swidler &

Berlin, 524 U.S. at 403; Jaffee v. Redmond, 518 U.S. 1, 11

(1996); United States v. Zolin, 491 U.S. 554, 562 (1989);

Weintraub, 471 U.S. at 348.

This Court has thus recognized what amici and their

members know from experience: lawyers and clients can

only have “full and frank communication[s]” if the rules

surrounding privilege are “predictable.”

Jicarilla

Apache Nation, 564 U.S. at 169, 183 (noting that “for the

attorney-client privilege to be effective, it must be

predictable”). A privilege test that is “difficult to apply in

practice”—especially by businesspeople untrained in

legal or evidentiary standards—will inexorably chill

attorney-client communication. Upjohn, 449 U.S. at 393.

“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.” Id.

To ensure this predictability, clients and lawyers need

to know ex ante whether a conversation that includes an

undisputedly significant legal purpose will remain

protected. It would undercut frank and confident

exchanges if a communication could lose privilege

protection because—in the eyes of a court years later and

judged on a cold record—the communication strayed into

other, nonlegal topics. The notion that discussing one

business topic too many, or for too long, would rob legal

8

advice of privilege would compel lawyers and clients to

segregate their conversations and censor themselves.

And the costs of those practices would be that clients

receive worse advice and meet their legal obligations less

frequently and ably.

2. The significant-purpose test is far more

predictable than the primary-purpose test applied by the

Ninth Circuit. Under the significant-purpose test, the

question is simply whether a legal purpose is “one of the

significant purposes of the communication.” Boehringer

Ingelheim, 892 F.3d at 1268; Kellogg, 756 F.3d at 760;

Restatement (Third) § 72, Reporter’s Note to cmt. c. That

analysis is fairly simple: one looks at the purposes of the

communication, determines which (if any) are legal, and

then asks only whether a legal purpose is significant.

None of those steps are difficult to apply, especially given

that the “significant” criterion principally serves to

ensure that the legal purpose is a legitimate one posed in

good faith. See infra pp. 13-14.

The significant-purpose test is “clearer, more precise,

and more predictable” than the “the primary-purpose

test” used by the Ninth Circuit. Kellogg, 756 F.3d at 75960; Pet.App.6a. The primary-purpose test sets courts on

a quixotic quest to find “a single ‘primary’ purpose” to a

communication.

Pet.App.4a.

But as then-Judge

Kavanaugh warned in Kellogg, such an inquiry “can be an

inherently impossible task. 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.” 756 F.3d at 759

(emphases added). Vague, ex-post balancing 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. Worse yet,

9

a task that is “inherently impossible” for judges is

completely unworkable for attorneys and, most

importantly, their clients, who are untrained in the metes

and bounds of privilege law.

By asking only if “one of the significant purposes of

the communication” was legal, e.g., Kellogg, 756 F.3d at

760; Restatement (Third) § 72, Reporter’s Note to cmt. c,

the significant-purpose test is predictable for courts and

litigants to follow. It therefore facilitates the kind of “full

and frank communication” between clients and lawyers

that the attorney-client privilege is intended to

encourage. E.g., Upjohn, 449 U.S. at 389.

B.

The Attorney-Client Relationship

A holding that the significant-purpose test applies to

communications with more than one purpose would also

better serve the purposes of the attorney-client

relationship generally. It will facilitate the ability of

lawyers to learn the underlying facts, maintain the trust

of their clients, and provide meaningful and fulsome

advice. At the same time, the requirement that the legal

purpose be “significant” minimizes the risk that the

privilege will be abused.

1. Effective legal advice depends on gathering the

facts. That is “[t]he first step in the resolution of any legal

problem.” Upjohn, 449 U.S. at 390. A lawyer must

“ascertain[ ] the factual background and sift[ ] through

the facts with an eye to the legally relevant.” Id. at 39091.

Accordingly, the “privilege covers … those

communications in which the client informs the attorney

of facts that the attorney needs to understand the

problem and provide legal advice.”

Boehringer

Ingelheim, 892 F.3d at 1267. Fact gathering depends on

clients’ willingness to share information “even as to

10

embarrassing or legally damaging subject matter.”

Model Rules of Prof’l Conduct R. 1.6, cmt. 2 (Am. Bar

Ass’n 2022). 2

The significant-purpose test facilitates the full

presentation of factual information to lawyers. Clients

need not be concerned that factual information will be

deemed relevant to only a nonlegal, or business, purpose.

Nor need they be worried that the thrust of their request

will be deemed to have focused on their personal or

business concerns rather than a legal one. Consider again

the example at the beginning of the brief regarding the

salesperson and the customer who wants to change the

sales contract. The salesperson may well be focused on

how the customer’s demands would affect the

salesperson’s compensation and position. But it behooves

the lawyer—and the company the lawyer represents—to

hear as much from the salesperson as possible regarding

those concerns, because the lawyer is then able to learn

the full scope of facts that could affect the legal analysis.

2. The significant-purpose test also better creates the

“trust that is the hallmark of the client-lawyer

The Court has relied on the American Bar Association’s Model

Rules of Professional Conduct in cases involving lawyers’ conduct.

See, e.g., Jerman v. McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.

573, 600 (2013); District Attorney’s Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52, 94-95 (2009); Commissioner v. Banks, 543 U.S.

426, 436 (2005). The Model Rules were first adopted in 1983 by the

ABA’s House of Delegates and are the basis for the state rules that

directly govern lawyers’ professional responsibilities. See, e.g.,

Restatement (Third) § 1 cmt. b. Indeed, since 2018, when California

substantially revised its rules, all 50 states model their professionalresponsibility regimes for lawyers on the ABA’s Model Rules. See

Lorelei Laird, California Approves Major Revision to Attorney

Ethics Rules, Hewing Closer to ABA Model Rules, ABA J. (Oct. 2,

2018, 2:20 PM), https://tinyurl.com/ypycdkdh; Jurisdictional Rules

Comparison Charts, ABA, https://tinyurl.com/28ba44vv.

2

11

relationship.” Id. The attorney-client privilege, like other

privileges, is “rooted in the imperative need for confidence

and trust” between client and attorney. Trammel, 445

U.S. at 51; see generally Stockton v. Ford, 52 U.S. 232, 247

(1850) (“There are few of the business relations of life

involving a higher trust and confidence than that of

attorney and client ….”). The maintenance of the

privilege and confidentiality itself encourages clients to

trust their lawyers and their lawyers’ discretion. By

requiring only that one of the significant purposes of the

communication be legal, the significant-purpose test

fosters fulsome communication which necessarily will

deepen trust, especially if the subject matter is sensitive.

The Ninth Circuit’s standard, on the other hand, puts

the lawyer in the unfortunate role of gatekeeping the

client’s presentation of information. Because that court’s

standard applies privilege only if the “single ‘primary’

purpose” of a communication is legal, a lawyer could

reasonably fear that a given subject will cause the

communication to become overly personal or businessfocused rather than legal. It would be understandable if

the lawyer therefore urged a client to stop speaking on

that subject. And it would be equally understandable in

such a circumstance for the client to feel alienated from

the lawyer and unable to trust the lawyer’s advice and

understanding of the client’s issues.

3. A rule for dual-purpose communications that

embraces privilege protection so long as a significant

purpose is legal not only supports the lawyer’s gathering

of information to provide advice, it also improves the

advice itself. Lawyers are obligated to “render candid

advice.” Model Rules of Prof’l Conduct R. 2.1. “Legal

advice often involves unpleasant facts and alternatives

that a client may be disinclined to confront.” Id. cmt. 1.

12

“Purely technical legal advice … can sometimes be

inadequate.” Id. cmt. 2. “Advice couched in narrow legal

terms may be of little value to a client, especially where

practical considerations, such as cost or effects on other

people, are predominant.” Id. Lawyers are not failing to

provide legal advice when they give advice that accounts

for, and refers to, practical business or personal issues.

Rather, the rules of professional conduct encourage

lawyers to give clients advice that considers “moral,

economic, social and political factors” in addition to legal

issues. Id. R. 2.1. That is not only an effective way to

communicate advice; it reflects legal judgments as well.

In some circumstances, “moral and ethical considerations

impinge upon most legal questions and may decisively

influence how the law will be applied.” Id. cmt. 2.

The Ninth Circuit’s standard, however, chills lawyers

from presenting advice in these most effective ways. For

fear that they were communicating in such a manner that

the “single ‘primary’ purpose” might be perceived as

practical or moral advice, Pet.App.4a, lawyers will be

drawn to using “narrow legal terms” that professional

guidance and common sense instruct are often “of little

value” to clients. Model Rules of Prof’l Conduct R. 2.1

cmt. 2.

The privilege’s ability to serve its purpose of fostering

compliance with law depends on clients’ following their

lawyers’ advice. “Based upon experience, lawyers know

that almost all clients follow the advice given, and the law

is upheld.” Model Rules of Prof’l Conduct R. 1.6 cmt. 2.

But that can be the case only when lawyers are able to

effectively present that advice so that clients can fully

appreciate it.

“[F]ull and frank” communication

“encourages observance of the law and aids in the

administration of justice.” Weintraub, 471 U.S. at 348.

13

4. The significant-purpose test does not unduly

expand privilege protections. For over 70 years, courts

have used modifiers such as “significant” to describe the

requisite importance of a legal purpose in the privilege

standard. See, e.g., Zenith Radio Corp. v. Radio Corp. of

Am., 121 F. Supp. 792, 794 (D. Del. 1954); United States

v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D.

Mass. 1950). These modifiers ensure that the attorneyclient privilege does not become a “carbon copy” privilege,

where every communication involving a lawyer

automatically receives protection.

The party asserting the privilege must have a goodfaith basis for claiming that there was a legal purpose for

the communication. As the plain meaning of “significant”

denotes, the requirement that the legal purpose be

“significant” means that it must be legitimate or genuine.

See, e.g., Onishea v. Hopper, 171 F.3d 1289, 1297 (11th

Cir. 1999) (“‘significant’ means ‘deserving to be

considered’” (citing Webster’s Third International

Dictionary 2116 (1986))); Significant, Oxford English

Dictionary (2d ed. 1989) (defining “Significant” as

“sufficiently great or important to be worthy of

attention”). That requirement ensures that there is a

bona fide legal purpose for the communication, and not a

mere effort to shield communications between individuals

for other reasons.

What the “significant” modifier does not do, however,

is act as a backdoor for courts to engage in the type of

balancing inquiry the Ninth Circuit engaged in below or

to search for a principal or “predominant” purpose. See

Restatement (Third) § 72, Reporter’s Note to cmt. c, at

554 (comparing the “American decisions [which] agree

that the privilege applies if one of the significant purposes

of a client in communicating with a lawyer is that of

14

obtaining legal assistance” with the “English view,

differently stating a ‘predominant purpose’ test”

(emphasis added)). It is an impossible task in practice to

parse multiple purposes and determine which are the

most significant. Kellogg, 756 F.3d at 759.

The Court should reject any invitation to encourage

such balancing. In pronouncing a uniform rule for federal

cases, and to avoid confusion, the Court should clarify that

the “significant” modifier is not authorization to engage in

the mischief that a “most significant” balancing inquiry

invites. Instead, it should make clear that “significant”

means only that the legal purpose is legitimate under the

circumstances at issue, and thus not a mere ploy to cloak

business or personal communications under privilege

protections.

II. The Significant-Purpose Test Reflects the Legal Needs

of Modern American Business.

1. Almost 40 years ago, it was already the case that

“corporations ha[d] come to rely more upon internal

specialists and inside counsel to assess high risks and

make related business judgments.” Robert A. Kagan &

Robert Eli Rosen, On the Social Significance of Large

Law Firm Practice, 37 Stan. L. Rev. 399, 439 (1985).

Corporations’ reliance on in-house lawyers has only

grown since that time, and that reliance has precipitated

increases in the size of internal law departments and the

number of roles lawyers play. 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 AttorneyClient Privilege, 25 J.L. & Pol’y 437, 450-52 (2016) (Note

& Comment); Jennifer M. Pacella, The Regulation of

Lawyers in Compliance, 95 Wash. L. Rev. 947, 949 (2020)

(noting the “evolution of lawyer roles over recent years,

continuously shifting from what was once predominately

15

a law firm or litigation-based practice to ‘quasi-legal’

settings at the intersection of both business and law”).

The ethics rules reflect the centrality of in-house counsel

to the provision of legal services to businesses in our

country. See Model Rules of Prof’l Conduct R. 1.0(c)

(including in the definition of “law firm” a corporation’s

internal legal department).

Today, in-house counsel perform numerous legal

functions within businesses. Mixed in with those legal

roles are often various roles with legal overlays regarding

compliance, risk control, human resources, and

government affairs. O’Connor, 25 J.L. & Pol’y at 455-56;

Deborah A. DeMott, The Discrete Roles of General

Counsel, 74 Fordham L. Rev. 955, 957-58 (2005); see also

Pacella, 95 Wash. L. Rev. at 949 (citing surveys showing

“the general counsel serves simultaneously as chief

compliance officer in forty-eight percent of companies”

and “forty-one percent of in-house counsel reported that

managing compliance or regulatory issues is the ‘greatest

priority’ for their legal teams over the next year”).

Uniting the lawyer’s roles, however, are questions of legal

judgment and assessment. O’Connor, 25 J.L. & Pol’y at

457. “For example, legal feasibility and risk levels”—

quintessential legal issues—also are “critical factors in

the calculus of whether or not to proceed with new

projects or redesign existing programs,” which are

sometimes business issues that are tasked to an in-house

lawyer. Id. Ultimately, many in-house counsel are

charged with the “far-reaching duty … to provide legal

advice to officers, directors, and other constituents acting

on behalf of” the businesses that employ them. Id. at 453

(Note & Comment) (citation omitted).

The need for competent, accessible legal counsel

follows from the swelling complexity of our legal system.

16

See Pacella, 95 Wash. L. Rev. at 954; Robert C. Bird &

Stephen Kim Park, Turning Corporate Compliance into

Competitive Advantage, 19 U. Pa. J. Bus. L. 285, 338

(2017) (noting the “growing array of regulatory mandates

and modes of regulatory enforcement”); DeMott, 74

Fordham L. Rev. at 960 (noting the increasing cost of

legal services due to “increases in regulation and …

complexity of business operations”); Model Rule R. 1.6

cmt. 2 (“Almost without exception, clients come to lawyers

in order to determine their rights and what is, in the

complex of laws and regulations, deemed to be legal and

correct.”). Already in 1950, a reason for the privilege was

that “[i]n a society as complicated in structure as ours and

governed by laws as complex and detailed as those

imposed upon us, expert legal advice is essential.” United

Shoe Mach., 89 F. Supp. at 358 (quoting Model Code of

Evid., R. 210 cmt. (Am. Law Inst. 1942)). In 1981, this

Court recognized the particular strains that growing legal

complexity put on businesses and their need for thorough

legal advice, stating in the Upjohn decision that, “[i]n light

of the vast and complicated array of regulatory legislation

confronting the modern corporation, corporations, unlike

most individuals, ‘constantly go to lawyers to find out how

to obey the law’…” 449 U.S. at 392 (quoting Bryson P.

Burnham, The Attorney–Client Privilege in the

Corporate Arena, 24 Bus. Law. 901, 913 (1969)).

There have been no signs of abatement over the last

forty years. “As of 2018, the Code of Federal Regulations

filled 242 volumes and was about 185,000 pages long,

almost quadruple the length of the most recent edition of

the U. S. Code. And agencies add thousands more pages

of regulations every year.” Kisor v. Wilkie, 139 S. Ct.

2400, 2447 (2019) (Gorsuch, J., concurring in the

judgment). Those regulations impose “hundreds of

thousands of criminal penalties.” Neil Gorsuch, A

17

Republic, If You Can Keep It 242 (2019). And, especially

in highly regulated areas such as finance or the capital

markets, businesses find themselves subject to multiple

regulators at both the state and federal levels. But, even

in less regulated arenas, businesses—and especially small

businesses—turn to in-house counsel to advise on

numerous issues as they develop. See, e.g., 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[ir] business[es].”); Pacella, 95 Wash.

L. Rev. at 956-57 (“Lawyers in compliance roles advise

entities on conforming behavior to the complex regulatory

climate and often make predictions as to how a possible

adjudicator would evaluate the entity’s compliance

function, thereby offering judgment based on their

distinct education and expertise.”).

2. To ensure compliance with those regulations and

laws, in-house counsel depend on receiving candid and

comprehensive information from the business lines in

their companies. Unlike outside counsel, who often

receive inquiries either directly from or in the presence of

other lawyers (e.g., internal counsel), lawyers working

within corporations receive inquiries from non-lawyers

who do not necessarily know what information is relevant

to the legal issues in play, or even the kinds of legal issues

that a proposed course of conduct raises. Lawyers add

tremendous value in spotting and diagnosing legal

problems—and doing so in their infancy before a legal

issue becomes a regulatory investigation or civil lawsuit.

In their discussions with internal counsel, business

managers expect to receive guidance that they can

understand and that acknowledges their perspectives and

concerns. Academic legal analysis alone is much less

18

useful and actionable than prescriptive advice about

courses of conduct to take and the risks of not doing so.

See Model Rule R. 2.1 cmt. 2. Providing candid advice

encourages regular contact and candid conversations

between legal counsel and businesspeople, and

encourages businesspeople to seek out legal advice.

Ultimately, in-house counsel (and outside counsel)

assist businesses with problems for their businesses.

Legal and nonlegal purposes can be intertwined. In

litigation, “[t]he decision whether and at what price to

settle ultimately [i]s a business decision as well as a legal

decision.” Boehringer, 892 F.3d at 1268. In the

regulatory space, a company wants to comply with new

regulations but wants to do so in a cost-effective way. In

a business combination, the companies want a business

organization that will appeal to the market as well as be

the most advantageous from corporate-governance and

tax perspectives.

3. Across those situations and many more, the Ninth

Circuit’s “single ‘primary’ purpose” test provides worse

outcomes than the significant-purpose test. Pet.App.4a.

Under that approach, lawyers receive less, and worse,

information upon which to base their advice. And the

advice that they provide is less effective and meaningful.

In short, the Ninth Circuit’s test makes for fewer “full and

frank communication[s]” to lawyers and to clients.

Upjohn, 449 U.S. at 389. And, as a result, the “single

‘primary purpose” test undermines the “public ends” that

are “serve[d]” by the “sound legal advice or advocacy”

that the privilege fosters. Id.

a. Begin with the litigation,

transactional examples above.

regulatory,

and

19

* A lawyer advising a client on a settlement needs to

be able to speak candidly about the trade-offs and benefits

of a possible deal term. A businessperson may want to

expand the scope of the release the company receives, but

that will come at a cost—either in the settlement amount

or a compromise on a deal term. The lawyer needs to be

able to address those tradeoffs.

* So too must a lawyer be able to advise a client in the

regulatory space. If the client is considering a cheaper

alternative for regulatory compliance but that alternative

carries extra risk, the lawyer should be able to speak

freely about the issue without worrying that the privilege

may be broken. It is effective legal advice to tell a

businessperson: “We are only talking about a few

thousand dollars. The risk isn’t worth it.” A lawyer

should be able to give that advice without worrying that a

court would one day say that the “primary” purpose of

that communication was cost-evaluation and not

regulatory risk.

* And a lawyer needs to be able to advise the company

that the benefits to calling a deal a “merger of equals” in

terms of market reaction or morale does not outweigh the

benefits of choosing a particular structure for the

transaction over another. In the deal-making context,

businesses know well the importance of lawyers being “in

the room where it happens.” The Room Where It

Happens, on Hamilton (Atl. Recording Corp. 2015).

When the communication in that room involves a

significant legal purpose, the communication should be

privileged.

b. Consider a company contemplating a press

release. Businesses issue press releases for various

reasons, from announcing the opening of a new location to

the launch of new products to changes in key personnel.

20

Some of the legal issues involved in issuing a press release

may be obvious to non-lawyers.

Public-relations

personnel likely realize, for example, that they need to

confirm the accuracy of factual statements in the

company’s message. But other legal issues will not be so

obvious. Those same personnel might not consider, for

example, the securities-law issues associated with

whether certain statements could be considered material

or statements of fact rather than opinion. See generally

Omnicare, Inc. v. Laborers Dist. Council Constr. Indus.

Pension Fund, 575 U.S. 175, 186-87 (2015); Matrixx

Initiatives, Inc. v. Siracusano, 563 U.S. 27, 38-39 (2011).

The business is best served, from a legal perspective, by

the public-relations personnel being able to describe the

press release and its contents without thinking that they

need to circumscribe their communications with in-house

counsel to only what they assume (perhaps wrongly) are

the legal issues.

c. Similarly, a business line at a corporation may be

considering how to improve the sales of a struggling

product. Some sales managers have the idea that they

should reach out to distributors to sign exclusive

distribution agreements. The managers might realize

that such engagement raises contract issues and thus

present legal counsel with the discrete contract language.

But the same conduct could also trigger antitrust

concerns, depending on the relationship of the parties.

Without knowing the broader business reason underlying

the sales personnel’s request, the lawyer will be in the

dark as to a more foundational legal risk. And the

business could be buying itself an antitrust suit.

The single, primary purpose test would also

undermine the effectiveness of the lawyer’s legal advice in

that situation. In many instances, the most useful advice

21

that a lawyer can give is to offer an alternative business

solution, especially because “practical considerations,

such as cost or effects on other people, are [often]

predominant.” Model Rules of Prof’l Conduct R. 2.1 cmt.

2; see Anthony J. Casey & Anthony Niblett, The Death of

Rules and Standards, 92 Ind. L.J. 1401, 1440 (2017) (“The

lawyer may go beyond a yes or no answer and suggest

creative ways that a client could alter behavior to increase

the likelihood that the adjudicator would find the client in

compliance.”).

So, as part of counseling the

businesspeople to avoid the sole-distributor agreements,

the in-house counsel could remind them of what the

company did to shore up demand for another one of its

products. That advice, and reminding the businesspeople

of the corporate benefits from that campaign, could prove

critical to delivering legal advice that the businesspeople

would follow. But the single primary-purpose standard

encourages the lawyer to avoid giving that advice and to

instead address only legal principles.

d. An internal investigation puts these concerns, and

others, in stark relief. Effective, reliable legal advice

requires a lawyer to ascertain the relevant facts; indeed,

it is the necessary “first step” in the exchange. Upjohn,

449 U.S. at 390. But uncovering the facts is also relevant

to other nonlegal purposes. And courts adhering to the

flawed primary-purpose test sometimes require

disclosure of otherwise privileged communications with

counsel on the ground that the communications also

involved nonlegal purposes, such as compliance with a

company policy to investigate certain types of allegations.

See, e.g., Buckley LLP v. Series 1 of Oxford Ins. Co., 876

S.E.2d 248, 249 (N.C. 2022) (per curiam). Under the

significant-purpose standard, however, “if one of the

significant purposes of the internal investigation was to

obtain or provide legal advice, the privilege will apply.”

22

Kellogg, 756 F.3d at 760. As a result, the communications

are privileged “whether an internal investigation was

conducted pursuant to a company compliance program

required by statute or regulation, or was otherwise

conducted pursuant to company policy.” Id.

If the primary-purpose test applies, however, lawyers’

are hindered in accessing critical information, especially

when the investigation involves sensitive issues. For

example, an interviewed employee is likely to be

particularly hesitant if the subject matter is

“embarrassing or legally damaging.” Model Rules R. 1.6

cmt. 2. The Ninth Circuit’s test fuels that hesitance by

failing to protect confidentiality and raising the risk of

future embarrassment to the witness should the

communication come to light in later collateral litigation.

e. Along similar lines, suppose that a financialservices firm asks an in-house counsel to inquire how a

key business unit is managing client funds following a

recent merger. The legal issues to be investigated will

necessarily involve business issues. The legal questions

are significant. They include whether the funds were

managed in accordance with client agreements and

account statements, and whether federal and state

regulations were satisfied. The business questions are

equally important: Do the new business unit’s processes

align with the company’s existing ones? Are clients wellserved? And are they happy with the change? It would

hardly be unusual for client displeasure with the

company’s practices to stem from requirements imposed

by regulation. Learning how employees address that

client unhappiness would then be critical to the in-house

counsel’s ability to gauge the firm’s compliance. But

under the primary-purpose test, line employees are

discouraged from explaining to counsel the way they

23

actually go about addressing the business problem of a

client’s frustrations, in turn defeating the purpose of the

attorney-client privilege.

Similar issues would arise if a bank receives an

investigatory subpoena for the transaction records for a

customer. That can raise a cluster of issues for an inhouse lawyer. While ensuring appropriate compliance

with the subpoena as well as compliance with customerprivacy rules, the lawyer may need to advise its customerfacing employees about the scope of the request and what

they legally can and cannot say to the customer about the

subpoena or any attendant investigation. And the lawyer

also needs to understand the bank’s interactions with the

customer to ensure that it did not violate its legal

obligations. To be sure, the lawyer’s communications with

the customer and with the regulator are not privileged.

But the lawyer needs to be able to receive complete

information from the bank’s businesspeople. The inhouse counsel also needs to provide effective advice to the

customer-facing employees that they can understand and

appreciate as they address the business issue of dealing

with the bank customer.

f. Sometimes the situation confronting the business

is tragic. Consider the issues facing a company if one of

its shuttles crashes and employees on-board die. In the

immediate aftermath, executives would naturally want to

express remorse, both as a matter of public relations and

empathy for the victims. Making such a statement,

however, could harm the company’s legal interests. An

apologetic statement could be perceived as an admission

of liability. And, even if not, the release itself could

encourage litigation by turning the spotlight on the

company’s involvement or affecting the local jury pool.

24

Whatever advice the in-house lawyer gives, that

advice needs to be given quickly and effectively to meet

the human, business, and legal crisis facing the company.

The “single ‘primary’ purpose” standard would all but

demand that counsel give wooden, overly legal advice—

couched in terms like “proximate cause” and

“proportionate fault”—and omit the moral and emotional

dimensions of the situation. To say that “technical legal

advice … can sometimes be inadequate” in a situation like

that is an understatement. Model Rule R. 2.1 cmt. 2. In

order for the lawyer to provide legal advice that will be

heard and acted upon, the lawyer needs to be able to meet

the moment facing the company and speak to

management in a way they will understand. See id.

*

*

*

In circumstances tragic and ordinary, involving issues

mundane and groundbreaking, lawyers are called upon to

advise businesses on problems with legal and nonlegal

dimensions. The business receives the most informed and

most compelling legal advice when the privilege protects

communications made for a significant legal purpose even

if a nonlegal purpose was an equal or more significant

factor in requesting the advice.

III. The Tax Context Does Not Warrant a Unique Rule.

The analysis is no different when the legal purpose

involves tax law. The purposes underlying the attorneyclient privilege necessitate a uniform rule. See Upjohn,

449 U.S. at 393 (“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.”); supra, at 6-8. Nothing about the tax context

changes that, and the Court should decline any invitation

to create a special rule for attorney-client communications

25

involving tax considerations. In fact, this Court regularly

rejects attempts to treat the tax context as sui generis.

1. In Mayo Foundation for Medical Education and

Research v. United States, the petitioner asked the Court

to apply “a less deferential standard of review to Treasury

Department regulations” than it would “apply to the rules

of any other agency.” 562 U.S. 44, 55 (2011). The Court

instead recognized the importance of uniformity: “[W]e

are not inclined to carve out an approach to administrative

review good for tax law only.” Id.; see Stephanie Hoffer

& Christopher J. Walker, The Death of Tax Court

Exceptionalism, 99 Minn. L. Rev. 221, 222-24 (2014)

(chronicling how federal courts have rejected tax

exceptionalism).

Similarly, in South Dakota v. Wayfair, Inc., the Court

overruled precedent that imposed stricter scrutiny of

state action in the tax context, thereby bringing

uniformity to Commerce Clause jurisprudence. 138 S. Ct.

2080, 2099 (2018). In doing so, the Court recognized that

unique rules may be especially improper when they are

“removed from economic reality” and result in “artificial

competitive advantages.” Id. at 2092, 2094. As Justice

Scalia said in questioning the majority’s reasoning in the

case overruled by Wayfair: “It is difficult to discern any

principled basis for distinguishing between jurisdiction to

regulate and jurisdiction to tax.” Quill Corp. v. North

Dakota, 504 U.S. 298, 319 (1992) (Scalia, J., concurring in

part and concurring in the judgment). As the Second

Circuit observed soon thereafter, “jurisdictional rules in

the tax context have not been developed and applied in a

unique way.

Rather, the standard jurisdictional

principles typically operate in the same fashion in tax as

in all other fields of law.” United States v. Forma, 42 F.3d

759, 766 (2d Cir. 1994).

26

2. The same practice should apply to the principles of

attorney-client privilege, which should “apply with full

force in the tax context.” Mayo, 562 U.S. at 55. Those

principles are (1) encouraging “full and frank

communication,” and (2) promoting the “broader public

interests in the observance of law and administration of

justice.” Upjohn, 449 U.S. at 389; see supra, at 6-8.

Neither is subject-matter dependent.

Consider an example. The CEO of a company asks

two in-house counsel to evaluate corporate structures for

a subsidiary. The first is asked to analyze the tax

implications of the dispute. The second is asked to

consider the implications for intellectual-property

ownership and licensing. In both cases, the lawyer must

“know all that relates to the client’s reasons for seeking

representation.” Trammel, 445 U.S. at 51. And in both

cases, the public has an interest in the CEO receiving

advice that will promote compliance with the law and

regulations. See Evergreen Trading, LLC v. United

States, 80 Fed. Cl. 122, 131 & n.12 (2007) (“[S]eeking [tax]

advice serves the public’s interest in making it more likely

than not that the tax law will be followed.”).

The significant-purpose test requires that a significant

legal purpose motivate attorney-client communications

for the privilege to apply, Kellogg, 756 F.3d at 759-60, and

that test can just as readily be satisfied in the tax context.

In fact, most of the work lawyers do in the tax context

involves “bread and butter” legal tasks. Schering-Plough

Corp. v. United States, 651 F. Supp. 2d 219, 271 (D.N.J.

2009) (advising clients on how to comply with a statute—

subpart F of the Internal Revenue Code—is the “bread

and butter of international tax practice”), aff’d sub nom,

Merck & Co. v. United States, 652 F.3d 475 (3d Cir. 2011).

Tax laws are just that—laws. Lawyers interpret and

27

apply them just like any other statute. Lawyers’

communications about how to comply with the Tax Cuts

and Jobs Act, for example, should not receive any less

protection than lawyers’ communications about how to

comply with the Sherman Act.

This overlap is especially important in the business

community. Amici and their members regularly confront

issues that are bound up with tax considerations. See

Upjohn, 449 U.S. at 384 (describing communications

made “in order to secure legal advice from counsel …

concerning compliance with securities and tax laws,

foreign laws, currency regulations, duties to

shareholders, and potential litigation in each of these

areas”); Evergreen Trading, 80 Fed. Cl. at 125 (“[I]n the

area of federal income taxation … business planning, tax

return preparation and legal advice tend to coalesce.”).

From business combinations to employee benefits, tax law

and planning permeate questions that internal counsel

answer on a daily basis. Gregg D. Polsky & Adam H.

Rosenzweig, The Up-C Revolution, 71 Tax L. Rev. 415,

419 (2018) (“While there may be some important nontax

considerations in how [a] transaction is accomplished, tax

considerations often drive the structure.”); Michael L.

Schler, Basic Tax Issues in Acquisition Transactions,

116 Penn St. L. Rev. 879, 888 (2012) (“Most importantly,

it is vital for the corporate lawyer to consult a tax lawyer

at every stage of an acquisition transaction.”).

A rule that segregates legal purposes by subject

matter defies the realities businesses face. And it serves

only to provide a competitive advantage to the bestfunded clients, which can afford to segregate their tax

professionals from all others. For all these reasons, the

same privilege rule should apply for attorney-client

communications in all contexts.

28

CONCLUSION

For the foregoing reasons, the Court should reverse

the judgment of the Ninth Circuit.

Respectfully submitted,

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, DC 20062

SUSANNA MCDONALD

AMY CHAI

THE ASSOCIATION OF

CORPORATE COUNSEL

1001 G Street, N.W.,

Suite 300W

Washington, DC 20001

WILLIAM T. BURKE

JOHN S. WILLIAMS

Counsel of Record

JESSE T. CLAY

KEES D. THOMPSON

SUMER GHAZALA

JACOB L. BURNETT *

WILLIAMS &

CONNOLLY LLP

680 Maine Avenue,

S.W.

Washington, DC 20024

(202) 434-5000

jwilliams@wc.com

KEVIN CARROLL

THE SECURITIES

INDUSTRY & FINANCIAL

MARKETS ASSOCIATION

1099 New York Avenue,

N.W.

Washington, DC 20001

NOVEMBER 23, 2022

*

Admitted in Indiana 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).