Amicus Curiae Brief — In Re Grand Jury

Supreme Court briefNov 23, 2022

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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 OF AMICUS CURIAE

AMERICAN BAR ASSOCIATION

IN SUPPORT OF PETITIONER

————

JOHN M. COLVIN

JASON A. HARN

COLVIN & HALLETT, P.S.

719 Second Ave., Suite 711

Seattle, WA 98104

(206) 223-0800

jcolvin@colvinhallettlaw.com

DEBORAH ENIX-ROSS

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

amicusbriefs@americanbar.org

Counsel for Amicus Curiae

November 23, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF THE AMICUS ...........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. A Strong and Certain Attorney-Client

Privilege is Essential in Our Adversarial

System of Justice and Ultimately

Benefits Society as a Whole......................

A. A Strong and Certain Attorney-Client

Privilege Is a Bedrock Principle of

American Law......................................

B. A Strong and Certain Privilege Protects

Clients and the Legal System’s Interests .......................................................

C. A Strong and Certain Privilege Also

Fosters Full Evaluation of Conflicts of

Interest ................................................

D. A Strong and Certain Privilege Benefits Society as a Whole.........................

E. A Protective and Certain Privilege

Furthers Every Area of Legal Practice, Not Just “Business” Interests .....

II. The Ninth Circuit’s Primary Purpose

Test Is Unworkable...................................

A. The Primary Purpose Test Unnecessarily Restricts the Privilege and Undermines the Provision of Legal Advice ....

(i)

TABLE OF CONTENTS—Continued

Page

B. Dual-Purpose Communications Occur

in An Endless Variety of Common

Circumstances .....................................

C. Dual-Purpose Communications Occur

Frequently in Tax Matters ..................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Fisher v. United States,

425 U.S. 391 (1976) ................................... 6, 8, 9

FTC v. Boehringer Ingelheim Pharms., Inc.,

892 F.3d 1264 (D.C. Cir. 2018) .................

Hickman v. Taylor,

329 U.S. 495 (1947) ...................................

Hunt v. Blackburn,

128 U.S. 464 (1888) ...................................

In re Federated Dep’t Stores,

170 B.R. 331 (Bankr. S.D. Ohio 1994) .....

In re Kellogg Brown & Root, Inc.,

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

Jaffee v. Redmond,

518 U.S. 1 (1996) ....................................... 12, 14

McWilliams v. Dunn,

137 S. Ct. 1790 (2017) ...............................

PaineWebber Group, Inc. v.

Zinsmeyer Trusts Partnership,

187 F.3d 988 (8th Cir. 1999) .....................

Swidler & Berlin v. United States,

524 U.S. 399 (1998) ............................. 11, 12, 14

United States v. ChevronTexaco Corp.,

241 F. Supp. 2d 1065 (N.D. Cal. 2002) .....

United States v. El Paso Co.,

682 F.2d 530 (5th Cir. 1982) .....................

United States v. Willis,

565 F. Supp. 1186 (S.D. Iowa 1983) .........

TABLE OF AUTHORITIES—Continued

Page(s)

Upjohn Co. v. United States,

449 U.S. 383 (1981) ............................... 7, 11, 14

Wachtel v. Health Net, Inc.,

482 F.3d 225 (3d Cir. 2004) ......................

STATUTES

15 U.S.C. § 78dd-1 et seq. .............................

26 U.S.C. § 162(c) ......................................... 23, 25

26 U.S.C. § 877A ...........................................

26 U.S.C. § 877A(a)(3) ..................................

26 U.S.C. § 877A(d) ......................................

26 U.S.C. § 6039F .........................................

26 U.S.C. § 6039F(c) .....................................

26 U.S.C. § 6694 ...........................................

26 U.S.C. § 6695 ...........................................

26 U.S.C. § 6700 ...........................................

26 U.S.C. § 6701 ...........................................

26 U.S.C. § 6707 ...........................................

26 U.S.C. § 6708 ...........................................

26 U.S.C. § 7201 et seq. ................................

26 U.S.C. § 7206(2) .......................................

26 U.S.C. § 7407 ...........................................

26 U.S.C. § 7408 ...........................................

31 U.S.C. § 330(c) .........................................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

ABA Resolution 05A111 (adopted 2005) .....

1, 2

ABA Resolution 06A302A (adopted 2006) ...

ABA Resolution 08M301 (adopted 2008) .....

ABA Resolution 97A120 (adopted 2006) .....

Claudine Pease-Wingenter, Does the AttorneyClient Privilege Apply to Tax Lawyers?:

An Examination of the Return Preparation Exception to Define the Parameters

of Privilege in the Tax Context, 47

Washburn L.J. 699 (2008) ........................ 8, 23

IRS, Form 3520, Annual Return To Report

Transactions With Foreign Trusts and

Receipt of Certain Foreign Gifts, OMB No.

1545-0159 (2021) .......................................

IRS, Form 8854, Initial and Annual Expatriation Statement, OMB No. 1545-0074

(2021) ................................................... 24, 25, 26

IRS, Internal Revenue Manual, Exhibits

20.1.1-3-6 (October 19, 2020), https://www.

irs.gov/irm/part20/irm_20-001-001r .........

IRS News Release IR-2021-202 (October

15, 2021), https://www.irs.gov/newsroom

/irs-updates-process-for-frequently-askedquestions-on-new-tax-legislation-andaddresses-reliance-concerns .....................

Katherine D. Black & Stephen T. Black, A

National Tax Bar: An End to the

Attorney-Accountant Tax Turf War, 36

St. Mary’s L.J. 1 (2004).............................

TABLE OF AUTHORITIES—Continued

Page(s)

Rev. Proc. 89-14, 1989-1 C.B. 814 ................

Scott Greenberg, Federal Tax Laws and

Regulations are Now Over 10 Million

Words Long, The Tax Foundation (Oct. 8,

2015) ..........................................................

TREATISES

Edward J. Imwinkelried, The New Wigmore:

Evidentiary Privileges (4th ed. 2022).... 6, 7, 8, 10

Paul R. Rice et al., Attorney-Client Privilege

in the United States (2021) .......................

INTEREST OF THE AMICUS1

The ABA is the largest voluntary association of

attorneys and legal professionals in the world. Its

members come from all fifty States, the District of

Columbia, and the United States territories, as well as

foreign countries. The ABA’s membership includes

attorneys practicing at law firms, corporations, nonprofit

organizations, the federal, State and local governments, as well as judges,2 legislators, law professors,

law students, and associates in related fields.

In their various practices, attorney members of the

ABA, in every field of practice, and their clients, routinely rely on the attorney-client privilege to protect

legal-advice communications from disclosure to third

parties. The attorney-client privilege, as this Court

has often recognized, is essential to maintaining the

confidential relationship between client and attorney,

which ultimately benefits our entire society. Thus, the

ABA has adopted policies strongly supporting “the

preservation of the attorney-client privilege.”3 These

policies, which again are in line with this Court’s precedents, recognize that preservation of the privilege is

beneficial “to encourage clients to discuss their legal

matters fully and candidly with their counsel so as to:

(1) promote compliance with law through effective

No counsel for any party authored this brief in whole or in

part, and no person other than the amicus or its counsel made a

monetary contribution intended to fund the preparation or

submission of this brief. The Petitioner filed a blanket consent to

all amicus filings, and the Respondent consented to this filing.

Neither this brief nor the decision to file it should be

interpreted to reflect the view of any judicial member of the ABA.

No member of the Judicial Division Council has participated in

the adoption or endorsement of the positions set out in this brief.

ABA Resolution 05A111 (adopted 2005).

counseling, (2) ensure effective advocacy for the client,

(3) ensure access to justice and (4) promote the proper

and efficient functioning of the American adversary

system of justice.”4 To further these goals, the ABA

has consistently expressed opposition to “policies,

practices and procedures * * * that have the effect of

eroding the attorney-client privilege and work product

doctrine and favors policies, practices and procedures

that recognize the value of those protections.”5

The ABA has repeatedly adopted policies supporting

the attorney-client privilege in specific business law

contexts, including “in connection with audits of

company financial statements,”6 “between in-house

counsel and their clients,”7 and between American

lawyers and their clients in the European Union.8 The

ABA’s interest in protecting the attorney-client

privilege, however, is not limited to business law, but

extends to all areas of practice, including criminal,

immigration, family law, and other essential legal

services. Thus, the ABA and its broad membership

from all aspects of the profession have a strong

interest in how this Court construes and applies the

time-honored attorney-client privilege and have deep

concerns regarding any possible narrowing of the

privilege beyond already well-established exceptions.

Id.

ABA Resolution 06A302A (adopted 2006).

ABA Resolution 97A120 (adopted 2006).

ABA Resolution 08M301 (adopted 2008).

SUMMARY OF ARGUMENT

I. The attorney-client privilege is fundamental to

the fair operation of our adversarial system of justice

and to society’s trust and confidence in the legal system.

Knowing that adversaries cannot access communications between lawyers and their clients (absent criminal

or fraudulent intent) enables clients to make frank

and complete disclosures to their lawyers. Full disclosure between clients and their lawyers enables better

and more accurate legal advice, which in turn enables

clients to make better-informed decisions. By enabling

lawyers to provide complete and honest legal advice

based on candid client-lawyer communications, the

privilege helps clients better conform their conduct to

the law, to the benefit of society as a whole.

A broad and clearly understood attorney-client

privilege is vital to effectuating these underlying

beneficial purposes of the privilege.

II. Certainly, when a significant purpose of a clientlawyer communication is a request for legal advice or

counsel, that communication should be protected,

even if some aspects of the communication are not

necessarily for that purpose. However, many such

communications are “mixed” in purpose, and parsing

them to determine the “significance” of various client

purposes is uncertain at best, and unnecessary. Existing

limitations on the attorney-client privilege—for example,

the crime-fraud exception, waiver by publication to

third parties, and inapplicability when not seeking

legal advice at all—are well-established and sufficient

to serve competing interests.

The Ninth Circuit’s test would narrow the privilege

well beyond already well-established exceptions and

limitations, without justification. It would also introduce

substantial uncertainty into the existence and extent

of the privilege. For this reason, this Court should

firmly reject it.

The unhealthy difficulties of a “primary-purpose”

test are real. It is common for clients to seek legal

counsel in situations where legal purposes substantially overlap with business, regulatory compliance,

and other not-exclusively-law-related purposes. Indeed,

clients will sometimes discuss entirely irrelevant,

personal topics with their lawyers, while also seeking

legal advice. Moreover, client discussions are often

interwoven with a variety of communications, without

regard to precise purpose-minding, in ways that make

separating and evaluating the purpose of every aspect

almost impossibly complex and uncertain—particularly

for a reviewing court charged with the task in most

cases years after the fact. There is no need in this case

to place such a new burden on clients, their attorneys,

and reviewing courts. Such discussions should be

protected as a whole, not parsed sentence by sentence

or phrase by phrase. Requiring courts to untangle

multiple purposes and determine which was the

“primary” purpose will result in honest communications about legal matters between attorneys and clients

being exposed in unclear and unpredictable ways.

This Court should reject the primary-purpose test

for several reasons. That test does not allow clients to

confidentially share full information with their lawyers

in dual-purpose scenarios. It also inhibits both

lawyers and clients from fully exploring potentially

relevant facts and full legal options. And, it would

involve courts in endless parsing of communications,

whether in camera or otherwise—a process that

would, of itself, inhibit full and candid communication.

Moreover, the primary purpose test would prove costly

and inefficient by incentivizing clients and lawyers to

take steps to minimize or compartmentalize the role of

lawyers and the range of discussion held with them,

when arguably non-legal purposes are involved.

Additionally, and importantly, the Court should

avoid going any further in this case than is necessary

to reject the “primary-purpose” test and should not

adopt any other test that would narrow the existing

privilege beyond well-established exceptions and limitations. For example, while a “significant purpose”

test is certainly better, because it is less intrusive on

the attorney-client relationship than the Ninth Circuit’s

test, it still would leave substantial uncertainty and

less protection for clients searching for legal advice. A

test that looks to a “significant purpose” of attorneyclient communications is similarly problematic to

the extent it also requires difficult determinations of

what purposes pass the threshold of “significance.”

Attorneys and clients should be able to have certainty

that their communications are privileged so long as

any purpose of those communications is to obtain or

provide legal advice and no other well-established

exception applies. There is no reason to carve out a

new exception for communications that involve a

genuine yet somehow “insignificant” legal purpose,

and this case does not require the Court to do so.

Where, as here, a purpose of the communication is

to obtain or provide legal advice, the communication

should be protected, and the Ninth Circuit’s contrary

approach should be rejected. The Court should not

narrow the attorney-client privilege when a purpose of

communications is for legal consultation, and it should

not muddy the analysis of a time-honored privilege

that is, by comparison, relatively clear and understandable by clients and lawyers alike.

ARGUMENT

I. A Strong and Certain Attorney-Client

Privilege is Essential in Our Adversarial

System of Justice and Ultimately Benefits

Society as a Whole.

As this Court has long recognized, “[c]onfidential

disclosures by a client to an attorney made in order to

obtain legal assistance are privileged.” Fisher v.

United States, 425 U.S. 391, 403 (1976). This principle

has been a foundation of the American legal system

from the earliest days of the nation. The wellunderstood certainty and breadth of that privilege

protects both clients and lawyers, ensuring that

clients feel able to provide complete information to

their lawyers and that lawyers are in turn able to

provide fully informed legal advice. The Ninth

Circuit’s primary-purpose test for privilege undermines the certainty necessary to the attorney-client

relationship and harms society’s interest in the availability of confidential and sound legal advice.

A. A Strong and Certain Attorney-Client

Privilege Is a Bedrock Principle of

American Law.

American courts recognize that, to protect certain

relationships highly valued by society, confidential

communications made within those relationships

must be shielded from forced disclosure. Edward J.

Imwinkelried, The New Wigmore: Evidentiary

Privileges § 3.2.3 (4th ed. 2022). That has given rise to

privileges for communications made between spouses,

attorney and client, clergy and penitent, physician

and patient, and psychotherapist and patient. Id. at

§ 3.2.4. Of these, the attorney-client privilege is the

oldest, with roots dating back to sixteenth-century

England. Id. at § 2.2.

By the time of the founding of the United States, the

attorney-client privilege was well established as a

means to ensure a “client’s freedom of action when

dealing with his legal advisor,” and American courts of

the founding era applied the privilege. Paul R. Rice et

al., Attorney-Client Privilege in the United States

§§ 1:3, 1.12 n.2 (2021) (collecting cases between 1782

and 1817).

In keeping with this tradition, this Court has also

long recognized that encouraging full and frank communication between lawyers and their clients promotes

the public “interest and administration of justice.”

Hunt v. Blackburn, 128 U.S. 464, 470 (1888). In Hunt,

the Court noted that the assistance of an attorney “can

only be safely and readily availed of when free from

the consequences or the apprehension of disclosure.”

Id. As then-Justice Rehnquist later explained in his

opinion for the Court in Upjohn, the purpose of the

privilege “is to encourage full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of

law and administration of justice.” Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981). The privilege

recognizes that sound legal advice or advocacy based

on full and candid information serves the public good,

and that this depends upon lawyers’ being fully

informed by clients without inhibition. There are of

course exceptions and limitations to this general rule,

such as when a client discloses information to a lawyer

to seek legal advice in furtherance of an ongoing crime

or fraud or when there is intentional disclosure to a

third party.

But, crucially, those exceptions and

limitations are of limited number and well defined so

that they do not inject uncertainty into the privilege.

Additionally, protecting attorneys and their clients’

communications from disclosure prevents litigants in

our adversarial system of justice from building their

cases on the factual investigation and legal analysis

performed by their opponents. Hickman v. Taylor,

329 U.S. 495, 516 (1947) (Jackson, J., concurring)

(“Discovery was hardly intended to enable a learned

profession to perform its functions * * * on wits

borrowed from the adversary.”).

B. A Strong and Certain Privilege Protects

Clients and the Legal System’s Interests.

Clients can obtain meaningful legal advice to guide

their conduct within the bounds of the law only if their

lawyers are fully aware of all the facts. Such candid

communication depends on clients’ faith that their

communications with their lawyer will be shielded

from future disclosure. Thus, clients must “be in a

position to forecast whether a privilege would later

protect” those communications. Imwinkelried, supra

§ 1.2.2. If disclosure to lawyers means that information may become more easily available to an

adverse party somewhere down the road, clients will

be more reticent about what they choose to share with

their lawyer. United States v Fisher, 425 U.S. 391, 403

When portions of the communications are published to

a third party, such as on a tax return filing, the privilege is

lost with respect to such communications. Claudine PeaseWingenter, Does the Attorney-Client Privilege Apply to Tax

Lawyers?: An Examination of the Return Preparation Exception

to Define the Parameters of Privilege in the Tax Context, 47

Washburn L.J. 699, 715-720 (2008) (collecting cases).

(1976). Of course, the less the client shares with the

lawyer, the lower the quality of the advice. Good legal

advice, provided on full information by lawyers

presumptively acting within the bounds of the law and

ethical rules, benefits our legal system as a whole.

The process of obtaining legal advice is a dynamic

and often “messy” one, with the client communicating

all sorts of information (relevant or not) and goals, and

the lawyer asking follow-up questions to refine the

application of the law to the facts of the client’s specific

circumstances. At the outset, clients often seek advice

because they are unaware of the legal principles and

the potential magnitude or scope of consequences of

their actions or contemplated actions. Clients do not

neatly separate the “purposes” of their communications with attorneys, but instead often “dump” a mess

of information and thoughts into wide-ranging and

interwoven discussions. In situations where a reviewing court might say the client had “dual purposes” in

obtaining a lawyer’s assistance, the reality will often

be less clear. Inherent uncertainty about what legal

issues might be in play and what facts and goals are

relevant makes it difficult for the client to know the

relative (“primary” or “significant”) importance of various aspects of the conversation. Indeed, the very

reason for client consultation with a lawyer is to determine the legal relevance of facts and purposes, and the

potential for, and magnitude of, any legal exposure.

In these common circumstances, it is crucial that a

lawyer can confidently advise the client that communications “made in order to obtain legal assistance are

privileged,” Fisher, 425 U.S. at 403, regardless of

whether the client may also have other purposes in

their conversations with lawyers. It should be enough

that one of the purposes of involving a lawyer was the

desire to obtain legal advice. Otherwise, clients will

be inhibited in their disclosures to their lawyers,

fearful that “after the fact of communication, a judge

could surmount the privilege on the basis of the judge’s

ad hoc assessment.” Imwinkelried, supra § 1.2.2.

C. A Strong and Certain Privilege Also

Fosters Full Evaluation of Conflicts of

Interest.

Certainty in the privilege not only allows lawyers to

provide fully informed legal advice but also reduces

lawyers’ concerns about their own potential liabilities

for advice rendered with less than full information. In

highly regulated areas of the law like federal taxation,

for example, rules exist governing the conduct of

practitioners (including lawyers). In the tax arena,

tax return preparers and tax advisers can be penalized

civilly10 or criminally,11 may be enjoined,12 and may be

subject to discipline by the IRS Office of Professional

Responsibility.13 Accordingly, when the government

reviews a taxpayer’s tax filings, it may also review the

role of the return preparer or tax adviser if it believes

there are significant errors. If a lawyer does not

receive all of the facts due to the client’s fear of

disclosure, the risk of prosecution or penalty for

inadvertently giving poor advice increases many times

over. The same is true in other areas of the law where

lawyers are subject to regulation by the agencies they

practice before.

26 U.S.C. §§ 6694, 6695, 6700, 6701, 6707, and 6708.

26 U.S.C. § 7206(2).

26 U.S.C. §§ 7407 and 7408.

31 U.S.C. § 330(c).

Allowing information to flow freely under the cover

of the privilege means not only that the client does not

have to worry that information divulged to the lawyer

could be used against the client, but that the lawyer

likewise does not have to worry that he or she could be

the target of a regulatory or criminal investigation

based on discussions with the client that are deemed

unprotected by the privilege. Thus, when privilege

protections are in place, the lawyer does not have to

worry as much about personal self-interest when

determining what to advise the client.

D. A Strong and Certain Privilege Benefits

Society as a Whole.

A certain privilege also provides societal benefits

beyond the attorney and client. Our system of justice

is based in part on lawyers’ ability to counsel clients

about their rights and obligations under the law.

For example, this Court recognized in Upjohn that

attorneys must be able to obtain the full information

necessary to advise their clients about compliance

with the law. 449 U.S. at 492. Clients who are afraid

to provide their lawyers with the full story will not

end up with the same quality of advice regarding

compliance with the law that they otherwise would if

the privilege provided more certainty. In addition to

the deleterious effect on lawyers’ ability to ensure

compliance with the law, this could also affect the

client’s bottom line because not receiving timely advice

to mitigate or remediate prior conduct often proves

expensive in the long run.

To ensure lawful conduct, it is essential that “the

attorney and client * * * be able to predict with some

degree of certainty whether particular discussions will

be protected.” Upjohn, 449 U.S. at 393. Thus this

Court in Swidler & Berlin v. United States, 524 U.S.

399 (1998), rejected a posthumous exception to the

privilege, even for communications that have a

“substantial importance” to criminal litigation. As

Chief Justice Rehnquist explained, for the Court such

an exception would introduce “substantial uncertainty

into the privilege’s application.” Id. at 409. Likewise,

in Jaffee v. Redmond, 518 U.S. 1 (1996), the Court held

that applying a balancing test for communications

subject to the mental-health-professionals privilege

“would eviscerate the effectiveness of the privilege.”

Id. at 17–18.

Moreover, if a primary-purpose test is adopted,

clients may try to dissociate and distance their legal

advisors from any roles that might be viewed as nonlegal. For example, rather than have the trusted, longtime legal advisor prepare a tax return or a regulatory

filing, the client might choose to hire an additional

non-legal professional to be primarily responsible for

the filing. Going forward, the client would ask the

trusted legal advisor only very specific “clearly legal”

questions. This will come at an additional cost to the

client. It may also have an impact on the quality of

the advice received. The lawyer may not review the

client’s situation as carefully as in the past because

the lawyer is no longer primarily responsible for the

submission and does not engage in the dynamic and

interactive process at the outset of a complex legal

engagement; rather, the lawyer receives only very

specific information, narrowly tailored to fit the discrete

“purely legal” question that the client believes should

be presented and nothing more. This may hinder the

lawyer’s ability to provide the best possible advice to

the client.

E. A Protective and Certain Privilege

Furthers Every Area of Legal Practice,

Not Just “Business” Interests.

While this particular case arises in the tax-law

context, it is vitally important to recognize that what

this Court says will affect every area of legal practice.

Many, if not all, areas of legal practice involve client

communications where the purposes will be mixed and

unclear, not just at the outset but throughout the

attorney-client relationship. This Court, then, should

be extremely cautious in endorsing a new “test”—

which creates an exception to the privilege—that

would impose unclear boundaries and that is also

unnecessary to decide this case.

Thus, unsophisticated clients in contexts involving

criminal law, family law, immigration, bankruptcy,

and trusts and estates all often approach their lawyers

without legal knowledge or a clear division of “purposes” in their minds. One can easily imagine the

criminal suspect, the undocumented refugee, the

distraught spouse, or the elderly testator, trying to

determine the lawful path, significance, and magnitude of their choices and actions. Even if their lawyer

may also be assisting them in a non-legal capacity as

well, each of these individuals is seeking legal counsel

and thus presumptively within the existing attorneyclient privilege as limited by its well-established

exceptions. And what “purposes” in their consultation

are “primary” or “significant” versus just “important,”

or “minor” versus simply confused, is neither apparent

nor—absent adoption of some new test by this Court—

necessary to their communications. Without belaboring this point, this Court must recognize that what it

says in this case will affect clients and lawyers in all

these, and other, law practice contexts. For that

reason, the Court should avoid endorsing any specific

“test” that will amount to a new and undefined

exception to the otherwise broad and well-understood

attorney-client privilege and its already well-established exceptions. We urge the Court to decide what

is necessary for this case—rejecting a “primary purpose”

exception to the privilege—and not say more.

II. The Ninth Circuit’s Primary Purpose Test

Is Unworkable.

A. The Primary Purpose Test Unnecessarily Restricts the Privilege and Undermines the Provision of Legal Advice.

The provision of full and well-considered legal

advice requires a robust attorney-client privilege free

from unnecessary restrictions. It is common for clients

to consult their attorneys and discuss both legal and

other aspects of their lives and conduct. In those

discussions, clients and attorneys have the right to

expect that the attorney-client privilege will govern

the communications, unless an already well-recognized exception to privilege applies. To maintain a

clear, understandable, and protective privilege for

such “dual purpose” attorney-client communications,

the privilege should apply so long as a purpose of the

communications is to solicit or provide legal advice,

regardless of whether the communication also served

some other purpose—even if that other purpose was

more significant.

The Ninth Circuit’s primary-purpose test for dualpurpose communications creates exactly the type

of uncertainty regarding privilege that this Court

rejected in Upjohn, Swidler & Berlin, and Jaffee. For

example, under the Ninth Circuit’s test, to determine

whether a given communication was covered by the

privilege, a lawyer (and later, a reviewing court) would

have to determine what the client’s primary purpose

was, when they communicated. Such an arcane

parsing of motivations is difficult, time-consuming,

and subject to a wide range of present and post-hoc

variations. Even if the lawyer concluded that a legal

purpose was the primary purpose for the communication, in a close case, the lawyer could not affirmatively

assure the client that communications between the

two parties would remain privileged.

Moreover, as Judge Roth observed almost two

decades ago, “courts must be particularly careful not

to craft rules that cause application of the privilege to

turn on the answers to extremely difficult substantive

legal questions.” Wachtel v. Health Net, Inc., 482 F.3d

225, 237 (3d Cir. 2004). The “need for the attorneyclient privilege is at its height where the law with

which the client seeks to comply is complicated and the

penalties for noncompliance are great.” Id. A client’s

“ability to secure confidential legal advice should not

be at its lowest when complex legal obligations are at

their highest.” Id. In this case, which involves the

preparation of sophisticated tax returns, as in many

other contexts, it is often impossible to know which

issues, legal or other (tax, business, personal), are the

“primary” issues. Advising the client as to whether

communications with the lawyer will be protected by

the privilege will be fraught with uncertainty—

and that uncertainty will encourage clients to avoid

providing the full and candid information the attorney

needs most.

Under the Ninth Circuit’s test, if potentially privileged dual-purpose communications are sought in

civil or criminal litigation, a court will be required to

determine whether the client’s primary purpose in

making the communications was seeking legal advice

or something else. This requires multiple levels of

review—first, to determine what portion of the advice

is legal and what portion is for a different purpose; and

second, to measure which purpose was “primary.”

Lawyers and clients will have little certainty as to how

these inquiries would be resolved by a court after the

fact. Moreover, many of these determinations will

involve in camera review, which courts recognize is

“an awkward, time-consuming process.” PaineWebber

Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d

988, 992 (8th Cir. 1999). In cases where the “primary

purpose” becomes an issue, privilege determinations—

already not an easy task—will become even more

difficult, unpredictable, and time-consuming, requiring

the court to compare the magnitude of the legal issue

(including an assessment of the merits during what is

intended to be a preliminary discovery stage) with the

significance of the non-legal purpose.

B. Dual-Purpose Communications Occur

in An Endless Variety of Common

Circumstances.

The primary purpose test is not just theoretically

flawed, but would prove practically unworkable in a

variety of contexts that arise every day. In practice, it

is commonplace for attorneys to receive communications from clients that have more than one purpose.

Whether it is a call from a corporate general counsel,

a long-time client, or a friend or family member, an

attorney is frequently asked for advice that has

business, economic, regulatory, or personal components as well as legal ones. Indeed, at its core,

virtually all legal advice received by businesses can be

viewed as being for the purpose of furthering the

client’s business, which will severely complicate the

task of determining the primary purpose of any

communication. And virtually all legal advice received

by individuals has some personal, financial, or other

non-legal purpose as well.

Nevertheless, clients and attorneys expect and

should have a right to expect those communications to

be protected by the attorney-client privilege so long as

any purpose of the communication was to solicit or

provide legal advice. Consider the following examples:

Example 1: Traffic Accident

Danny the driver called his friend and legal adviser

Larry the lawyer to complain about a traffic accident

he was in earlier that day. He told Larry that he was

mostly calling just to vent. A car smashed into his as

he was turning at an intersection. He was sure the

light was green. He noted how irresponsible some

drivers are and that he wound up missing his son’s

soccer game. In the course of the conversation, he

mentioned that he might have forgotten to use his turn

signal and had two drinks before he left home. Toward

the end of the conversation, he mentions that he might

have to talk to the insurance company and asks if

Larry has any advice. Although the primary purpose

of the communication was not to solicit legal advice,

the conversation should be privileged.

Example 2: Knowledge of Criminal Conduct

Billy the burglar is a longtime client of Larry’s and

calls periodically just to chat. He calls one day mostly

to discuss his daughter’s boyfriend who is a freeloader

and is staying at his house. In the course of the

conversation, he mentions that he has recently been

questioned by detectives about a burglary with which

he was not involved. But he says he is pretty sure one

of his friends was involved. He says he does not want

to implicate his friend, but also does not need any more

trouble with the police. At the end of the conversation,

Billy asks if Larry thinks Billy “needs” to tell the police

about his friend’s possible involvement in the burglary.

Although the primary purpose of the communication

was not to solicit legal advice, the conversation should

be privileged.

Example 3: Business/Antitrust Advice

Gina the general counsel is advising the Board of

Directors of a pharmaceutical company that is considering whether to enter a settlement to resolve patent

litigation with a generic manufacturer. Gina is also

serving as the lead negotiator in the settlement discussions. Gina and her staff create a number of economic

forecasts regarding the effect of the patent settlement

on the company’s profits. Some of the scenarios

include analyses of the costs and possible resolutions

of potential antitrust claims against the company for

settling the patent litigation. Gina ultimately recommends entering a settlement agreement, and the

company does so. Later, the FTC investigates the

settlement and seeks the economic forecasts and all

information that went into those forecasts. Although

legal advice was not the primary purpose of Gina’s

analysis, the forecasts and underlying communications should be privileged. See FTC v. Boehringer

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

Example 4: Business/Regulatory Advice

Gina the general counsel is advising the Board of

Directors of a large corporation about building a new

manufacturing facility along a river that supplies

drinking water for the surrounding area. Eddie, the

company’s chief engineer, tells Gina that the plant will

necessarily dump a small quantity of concerning

chemicals into the river. The Board has asked for a

cost/benefit analysis of building the new facility. Gina

and her staff run several scenarios regarding possible

profits and losses for the new facility. In at least a few

of the scenarios, they include environmental cleanup/

compliance costs as an input, and in one scenario they

include the possible costs of litigation arising from

environmental contamination caused by the new

facility. The EPA later asks Gina to turn over all of

the scenarios she and her staff created and to detail

any communications that were considered in generating those scenarios. Although the primary purpose of

Gina’s analysis was not the provision of legal advice,

the scenarios generated and Eddie’s communications

with Gina should be privileged.

Example 5: Health Care/Compliance Advice

Deborah the doctor calls her friend and legal adviser

Larry the lawyer to set up a play date for their

children. In the course of the conversation, Deborah

mentions that she is thinking about starting her own

practice and asks Larry if he thinks that is a good

business move.

Later in the conversation, she

mentions that one of her colleagues in her current

practice has a habit of looking into the records of her

patients and mentions to Larry that she thinks that is

“creepy.” She notes that she doesn’t want to make a

big deal about it but asks Larry if he thinks she is

obligated to report her colleague for violating HIPAA.

Although the primary purpose of the conversation was

not the provision of legal advice, the conversation

should be privileged.

In all of these examples, the client, attorney, and the

system benefit from free disclosure and provision of

legal advice, regardless of the primary purpose of the

communications. The Board of Directors receives

better advice from Gina, allowing the Board to make

better decisions in compliance with the law. Larry can

provide better counsel to Danny, Billy, and Deborah

because he has a fuller, more accurate understanding

of the facts. A test that restricts the privilege only to

communications where the primary purpose is to

solicit or provide legal advice would inhibit free

discussion in situations like these that occur every day

and hamper the provision and receipt of legal advice.

C. Dual-Purpose Communications Occur

Frequently in Tax Matters.

In cases involving client interactions with government agencies in particular, lawyers regularly consult

with clients about decisions that reflect both business

concerns on the one hand and legal concerns on the

other, and determining which purpose is “primary”

may depend both on how broadly the time period of

communications is viewed and on the subjective view

of the Court on the relative importance of “business”

and legal purposes. These are not the decisions judges

should be asked to make. This case, for example,

involves tax law—a heavily regulated area that

demonstrates with particular force the myriad legal

and non-legal concerns that underly communications

between tax counsel and their clients.

Understanding federal tax law is no easy task. As

of October 2015, the Internal Revenue Code and its

accompanying regulations exceeded 10 million words

in length, having increased dramatically from a mere

1.4 million words in 1955.14 The Internal Revenue

Scott Greenberg, Federal Tax Laws and Regulations are

Now Over 10 Million Words Long, The Tax Foundation (Oct. 8,

2015), https://taxfoundation.org/federal-tax-laws-and-regulation

s-are-now-over-10-million-words-long/.

Service also issues many types of guidance, both

formal and informal,15 and courts have also interpreted tax law in thousands of cases. Backstopping

the substantive tax law are more than 150 civil

penalties,16 and several criminal penalties.17

Perhaps the best description of the complexity of the

tax law was provided by the Fifth Circuit in United

States v. El Paso Co., 682 F.2d 530, 534 (5th Cir. 1982):

The income tax laws, as every citizen knows,

are far from a model of clarity. Written to

accommodate a multitude of competing policies and differing situations, the Internal

Revenue Code is a sprawling tapestry of

almost infinite complexity. Its details and

intricate provisions have fostered a wealth of

interpretations. To thread one’s way through

this maze, the business or wealthy taxpayer

needs the mind of a Talmudist and the

patience of Job.

Even endowed with these qualities, however,

no taxpayer completes a return with the

certainty that the IRS will agree with the

In addition to regulations, the Internal Revenue Service

issues formal guidance that taxpayers can rely on (e.g., Revenue

Rulings and Revenue Procedures), as well as less formal guidance

such as Private Letter Rulings, Technical Advice Memoranda,

and (more recently) website FAQs. Rev. Proc. 89-14, 1989-1 C.B.

814; IRS News Release IR-2021-202 (October 15, 2021), https://

www.irs.gov/newsroom/irs-updates-process-for-frequently-asked-qu

estions-on-new-tax-legislation-and-addresses-reliance-concerns.

See IRS Internal Revenue Manual, Exhibits 20.1.1-3, 20.1.14, 20.1.1-5, and 20.1.1-6, https://www.irs.gov/irm/part20/irm_20001-001r (summarizing the different penalties that might be

applied to taxpayer accounts).

See 26 U.S.C. § 7201 et seq.

bottom line, or the many steps taken to get

there. There is no tax oracle one may consult

to learn how a return will fare under the

scrutiny of the revenue agents and the courts.

The Code, after all, is a finite system of rules

designed to apply flexibility to an infinite

variety of situations. There are many “gray

areas” in the tax world, twilight zones in

which one may only dimly perceive how

properly to treat a given accretion to wealth

or given expenditure of funds.

Given the level of complexity and the stakes

involved—from greater tax liability to civil penalties

to jail—courts have consistently held that tax advice

is a species of legal advice.18 As one pair of commentators observed, “[t]ax practice is based on statutes and

regulations and requires in-depth analysis to form an

opinion on a tax issue.” Katherine D. Black & Stephen

T. Black, A National Tax Bar: An End to the AttorneyAccountant Tax Turf War, 36 St. Mary’s L.J. 1, 3

(2004).

It is understood by the tax bar that virtually all of

the advice that lawyers provide to their clients about

a tax issue, whether it concerns the tax consequences

of a multi-billion-dollar merger or the availability of a

Child Tax Credit, will ultimately end up being

reflected on a tax return:

With few exceptions, when a taxpayer/client

follows an attorney’s advice with respect to

tax issues, that advice will in some fashion

See, e.g., United States v. ChevronTexaco Corp., 241 F. Supp.

2d 1065 (N.D. Cal. 2002); In re Federated Dep’t Stores, 170 B.R.

331 (Bankr. S.D. Ohio 1994); United States v. Willis, 565 F. Supp.

1186, 1190 (S.D. Iowa 1983).

ultimately be reflected on the taxpayer/

client’s tax returns filed with the government.

In this sense, almost all tax law advice is, in

some regard, associated with return preparation activities.19

A good tax lawyer kicks the tires on the financial

information proffered by the client and asks questions

designed to ascertain the appropriate tax treatment

or potential tax consequences. Thus, the lawyerpreparer or lawyer-counselor is often the one who

discovers the potential legal issue and brings it to the

client’s attention. Even if the client expected the

engagement to be simple, it may turn out to be far

more complex than expected.

As an example of this iterative process, consider the

case where a small corporate client provides its

QuickBooks files to the corporation’s lawyer, thinking

that the lawyer could prepare a simple corporate tax

return. In reviewing the company’s QuickBooks files,

the lawyer discovers large questionable cash entries in

the “Travel and Entertainment” account. Based on the

lawyer’s experience, the lawyer believes that employees in one of the taxpayer’s overseas offices may have

been paying bribes. Bribes are generally not deductible under 26 U.S.C. § 162(c). Moreover, if the payment

is to a foreign official, the company may have civil and

criminal exposure under the Foreign Corrupt Practice

Act of 1977. 15 U.S.C. § 78dd-1 et seq.

At the lawyer’s urging, the lawyer and client discuss

the matter and attempt to determine the nature of the

Claudine Pease-Wingenter, Does the Attorney-Client

Privilege Apply to Tax Lawyers?: An Examination of the Return

Preparation Exception to Define the Parameters of Privilege in the

Tax Context, 47 Washburn L.J. 699, 699 (2008).

payments and resolve any tax and FCPA issues. This

seems like the paradigmatic case where the privilege

should apply. If a client’s fear of disclosure leads the

client to avoid a lawyer’s counsel, no one benefits—not

the client, not the system, and not society.

A multitude of different scenarios come to mind

where communications with tax lawyers have more

than one purpose, but where those communications

should be privileged:

Example 1: The client does not expect that tax

compliance will involve significant legal advice,

but the lawyer discovers a significant tax issue.

A client who has already expatriated hires a lawyer

to prepare a Form 8854, Initial and Annual Expatriation

Statement. This form is for the purpose of determining the amount of any tax due under 26 U.S.C. § 877A,

a complicated statute that taxes expatriates on unrealized gains in assets as of the date of expatriation.

The client assumes that the process will be largely

mechanical but understands that there may be some

questions that require legal analysis. However, in

reviewing the information provided by the client, the

lawyer discovers a significant issue with respect to

whether one of the client’s assets is properly treated

as a “deferred compensation item” pursuant to 26

U.S.C. § 877A(d). The bulk of the lawyer’s fees relate

to this issue, and the lawyer advises the client that

treating the asset as a deferred compensation item will

save him $2 million but that he has a 50% likelihood

of prevailing if the IRS challenges his position. The

client elects to treat the item as a deferred compensation item on the Form 8854, and the IRS challenges

this position. In the examination, the IRS seeks

production of communications between the lawyer

and the client. Although it is unclear whether the

“primary purpose” of the communications was for the

provision of legal advice, those communications should

be protected.

Example 2: The client does not expect that tax

compliance will involve significant legal analysis, but the lawyer discovers a non-tax legal

issue during return preparation.

The client hires an attorney to prepare his income

tax return, assuming that it will largely be a simple

and mechanical process of translating his books of

accounts into tax return entries, but the client wants

to be sure that the lawyer evaluates any issues that do

arise. In discussing the preparation of the return with

the client, the lawyer discovers that the client has

been paying bribes to a shell company owned by the

procurement manager for the client’s largest U.K.

customer. As bribe payments are not deductible,20 on

the lawyer’s advice, no deduction is claimed on the tax

return. Later, pursuant to a Mutual Legal Assistance

Treaty request from the U.K. authorities investigating

the bribery of the procurement manager, the government issues a subpoena for the lawyer’s files. Again,

although it is not clear whether the provision of legal

advice is the “primary purpose” of the communications, the communications should be privileged.

Example 3: Tax compliance does not involve

significant legal issues, but the lawyer raises

additional issues that cause the client to depart

from the initial plan.

A dual citizen asks her lawyer to prepare a draft

Form 8854, which she plans to submit when she

expatriates. Because the amount of net gain in her

26 U.S.C. § 162(c).

assets is below the threshold amount (see 26 U.S.C.

§ 877A(a)(3)) and no tax will be due, the client expects

this to be a simple project. In discussions with the

client about her assets, the lawyer learns that the

client inherited a multi-million-dollar residence located

in another country while the client was a U.S. citizen.

The client had failed to report this inheritance on a

Form 3520, as required by 26 U.S.C. § 6039F. The

lawyer explains that, while there is no tax due on the

receipt of a foreign inheritance, failure to file the

required report can subject the recipient to a penalty

of 25% of the asset’s value. 26 U.S.C. § 6039F(c).

Because of the risk that a review of the Form 8854

might lead to the IRS asserting a penalty with respect

to the failure to file a Form 3520 reporting the

inheritance, the client determines not to expatriate,

and never files a Form 8854. Later, in divorce

proceedings, the client’s spouse issues a subpoena for

the lawyer’s file, seeking to obtain asset value

information communicated by the client to her lawyer.

Again, although it is unclear whether the “primary

purpose” for the communications was the provision of

tax advice, the communications should be privileged.

As the above examples illustrate, the primary purpose test would be unmanageable, would unnecessarily

restrict the privilege, and would inject uncertainty and

unpredictability into the attorney-client relationship.

In any given case involving dual purposes, predicting

how a court might resolve a “principal purpose”

inquiry will be difficult. Assume the question is close,

and the trial court regards it as such, but rules that

the purpose was significant but not primary. Given

the potential consequences of disclosure—including

that privileged information, once disclosed, is a genie

that cannot be put back into its bottle—a client may

be compelled to seek interlocutory relief. This will

substantially increase costs for litigants and could

become a burden on courts.

Requiring clients, lawyers and ultimately courts to

determine the “principal purpose” of attorney-client

communications by identifying the relative weight of

multiple purposes injects uncertainty into the attorneyclient relationship. In doing so, it threatens both

candor and trust. As the D.C. Circuit has held, where

significant purpose of the communication was to

obtain or provide legal advice, the privilege should

apply. In re Kellogg Brown & Root, Inc., 756 F.3d 754,

760 (D.C. Cir. 2014).

To be sure, even the D.C. Circuit’s “significant

purpose” test could prove to be concerning in some

situations, to the extent that it requires a “significance” determination that could likewise be difficult

and unpredictable and leave some communications

unprotected that arguably should be privileged. There

may be situations in which the solicitation or provision

of legal advice is a genuine but very minor purpose

of the conversation; yet in such situations, there

would still be good reason to ensure that clients and

attorneys can feel secure that communications having

a legal purpose will be privileged. Whether and how

the privilege should apply in such a circumstance is an

important question in its own right, but it is not a

question presented in this case. A “significant” purpose of the communications at issue here was to obtain

legal advice. The Court should accordingly reverse the

decision below, and in doing so should take care not to

imply a new exception to the attorney-client privilege

for communications that have a legal purpose that

some might characterize as “insignificant.”

See

McWilliams v. Dunn, 137 S. Ct. 1790, 1800 (2017)

(declining “to issue a sweeping ruling when a narrow

one will do”).

CONCLUSION

The Court should reject the primary purpose test

and reverse the judgment below.

Respectfully submitted

JOHN M. COLVIN

JASON A. HARN

COLVIN & HALLETT, P.S.

719 Second Ave., Suite 711

Seattle, WA 98104

(206) 223-0800

jcolvin@colvinhallettlaw.com

DEBORAH ENIX-ROSS

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

amicusbriefs@americanbar.org

Counsel for Amicus Curiae

November 23, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.