Update: Supreme Court Dismisses Privilege Case After Hearing Arguments

Shortly after oral arguments on the correct standard for assessing the application of mixed-purpose communications in In re Grand Jury, the U.S. Supreme Court dismissed its writ of certiorari as improvidently granted.

To recap, the Ninth Circuit upheld the district court's finding that certain communications and workpapers made by a law firm to prepare a client's tax returns and certify compliance with tax requirements did not qualify for the attorney-client privilege, even though the law firm also provided legal advice on related tax issues. The Ninth Circuit found that, where communications involve mixed purposes – both legal advice and more routine accounting advice, in this case – attorney-client privilege does not protect the communications from disclosure when the primary purpose of the communication is not for the purposes of providing legal advice. The question before the Supreme Court was whether this articulation of the "primary purpose" test was correct.