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Schooled in Ethics
SCHOOLED IN ETHICS By: Alex B. Long
Williford Gragg Distinguished Professor of Law University of Tennessee College of Law
Tennessee courts have explained that the purpose of the attorneyclient privilege “is to shelter the confidences a client shares with his or her attorney when seeking legal advice, in the interest of protecting a relationship that is a mainstay of our system of justice.” Bryan v. State, 848 S.W.2d 72, 79 (Tenn. Crim. App. 1992). In January, the United States Supreme Court heard oral arguments concerning a circuit split over the scope of the attorney-client privilege. In addition to addressing a potentially important issue concerning the privilege, the case illustrates an important distinction between the application of the privilege and a lawyer’s ethical obligations under the rules of professional conduct.
Under the standard formulation of the attorney-client privilege, communications made in confidence between privileged parties for the purpose of providing or seeking legal advice are protected from disclosure. In Re Grand Jury, No. 21-1397, involves the question of how the attorney-client privilege should apply when a client’s communication involves intertwined legal and nonlegal purposes. The attorney in question prepares tax forms for clients and provides tax advice. A federal grand jury subpoenaed the lawyer for the production of documents related to a criminal investigation of one of the lawyer’s clients. The lawyer resisted on the grounds of attorney-client privilege. The communications at issue involved client questions about tax return preparation (which would not ordinarily be covered by the privilege because such questions do not involve legal advice) and communications seeking legal advice about what to claim on tax returns (which would be covered by the privilege). So, the client had a dual purpose in making the communications.
There are several possible tests that courts have applied in these dual-purpose situations. The trial court and Ninth Circuit Court of Appeals applied a “primary purpose” test, which examines whether the client’s primary purpose was to obtain legal advice. The Sixth Circuit has arguably adopted this approach. See Alomari v. v. Ohio Dept. of Pub. Safety, 626 Fed. Appx. 558, 570 (6th Cir. 2015). In contrast, the D.C. Circuit Court of Appeals has adopted something more along the lines of a “significant purpose” test, which examines whether obtaining legal advice was a significant purpose of the client’s communication. The Restatement of the Law Governing Lawyers articulates a similar rule. See Restatement § 72 cmt. c (stating that “the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistance”).
The Court’s resolution of this issue may impact Tennessee courts’ views on the scope of the privilege. The Tennessee Supreme Court has repeatedly looked to Supreme Court precedent when addressing the privilege. The court has also held that when a client speaks to lawyer, there is a presumption that the communication is for the purpose of legal advice. See Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 325 (Tenn. 2019).
Regardless of how the Supreme Court ultimately rules, In re Grand Jury raises several important issues . First, and most obviously, is the impact the Court’s holding will have on client-lawyer communications. But the case raises some other ethical issues worth noting.
For example, the case illustrates the point that the scope of a lawyer’s obligations under the attorney-client privilege and TRPC Rule 1.6, the rule regarding confidential information, are not co-extensive. The attorney-client privilege would not protect a communication relating to the lawyer’s representation of a client but not made for the purpose of obtaining legal advice. An attorney’s ethical obligation under Rule 1.6 is broader. Rule 1.6 requires an attorney to keep confidential any information regarding the lawyer’s representation of the client, even if the information is not privileged. Obviously, a lawyer could be compelled by force of law to disclose such information, but the lawyer may not voluntarily do so. To use the facts of In re Grand Jury as an example, the client’s communications regarding tax form preparation may not be privileged because they do not involve legal advice; but any information conveyed to the attorney is still information relating to the representation and would be protected by Rule 1.6. Similarly, a communication from a third person to a lawyer relating to the lawyer’s representation of a client would not be privileged because it was not made between privileged persons; but a lawyer would still owe a duty of confidentiality regarding the information under Rule 1.6.
Another ethical issue illustrated by the case concerns a lawyer’s duty to provide advice. TRPC Rule 2.1 requires that a lawyer provide candid “advice,” not simply “legal advice.” The rule actually explicitly states that “[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” So, the line that courts seek to draw in the attorney-client privilege context between privileged legal advice and non-privileged non-legal advice may not always be so clear as a matter of legal ethics.
