This Littler Lightbulb highlights some recent labor and
employment law developments at the U.S. Supreme Court and federal
courts of appeal.
- At the Supreme Court. On October 3, the
Justices agreed to hear In re Grand Jury, another
significant case that may impact employers. At issue is the
standard that governs the attorney-client privilege in
"dual-purpose" communications, which are communications
made for the purpose of both legal and nonlegal advice. This case
could have an effect on the attorney-client privilege as to
communications made in internal investigations and the standard
attorneys should use in conducting the same in the future.
The appellate courts are split on the
standard that applies. In the case before the Supreme Court, the
Ninth Circuit joined the Second and Fifth Circuits in adopting the
"primary purpose" test. Under that test, it is up to the
court to determine whether the primary purpose of the communication
is to provide legal advice.
