Stick to the Stronger Standard

After a grand jury sought records from an unnamed law firm hired to prepare that person’s tax returns, a federal judge ordered the firm to turn over documents that contained both legal advice and ordinary tax-return accounting unless the legal advice was the document’s “primary purpose.” The firm refused, saying that the documents should be protected so long as legal advice was a “substantial purpose” of the communication.

The justices understand:  too much is being shielded behind "attorney-client privilege" simply because a business communication has an attorney copied on a memo. It's not associates, but document review attorneys making these calls now...

If it's not really legal advice, the document should not be shielded and the client protected.  It's a new day in America.  Let the sun shine in (or, stop lowering the standards so that anything and everything unseemly for the client is shielded in discovery on a priv. log...  When you see how the sausage is really being made, it turns you off to sausage.)

Justice Sonia Sotomayor said Mr. Levin’s proposed test would protect too many communications. “If 1 percent of the purpose of this communication was to render legal advice,” she said, “the whole communication is suppressed.”

“Everybody agrees you can’t just copy a lawyer on a communication, you can’t just have a lawyer sit in the corner of a meeting,” he said, “and say the whole thing’s privileged.”  

But when authentic legal advice was rendered, Mr. Levin said, disentangling a communication’s competing purposes and deciding which was the primary one was “an inherently impossible exercise.” 

Endorsing the tougher standard, he said, would make it hard for lawyers and their clients to predict whether their consultations would be protected.

No, it's not hard. It just takes a little longer to line-item privilege the legal advice in the documents turned over. Go Justice! These justices know, if you shield all business communications, the corporate crimes will continue...