U.S. Seeks to Limit Attorney’s Procurement Opportunities on Counterparties (1)

The U.S. Supreme Court will consider the scope of the attorney-client privilege in a case that lawyers say could affect both in-house lawyers and foreign lawyers who support them.

The question for the judges at the debate on Monday is To the Chief Justice again what test should courts use to determine whether “dual-purpose” communications—containing both legal and business advice—should be protected by the opportunity.

The federal government is only advocating for a narrow understanding of the opportunity, but groups representing diverse expertise such as intellectual property and tax lawyers argue that a broader scope is needed to capture the real world roles of in-house lawyers. During arguments on Monday, the judges indicated that it may fall somewhere between the two positions.

But they all seem to agree that a verification test is needed to ensure proper communication between lawyers and their clients. The test should be clear, “not only for the court’s consideration of the case in the background, but for the lawyers who are working on the job,” said the announcement. Lawrence S. Ebner, executive vice president and general counsel of the Atlantic Legal Foundation.

Friends Against

Ebenu is one of many friends who wrote a friend-of-the-court short for a general understanding of the space. Although rare, such opposing amicus support is appropriate in this context.

The case involves a criminal investigation of an unnamed company and grand jury signatures were handed over to the company and its law firm. The case is the advice of the law firm, which specializes in international tax matters, given to the company about “especially news” issues such as the ownership of cryptocurrency, according to short. filed by the unnamed company.

Federal prosecutors are trying to provide more information on the discovery.

“To facilitate criminal investigations and prosecutions, the Department of Justice wants to narrow the scope of the attorney-client privilege,” Ebner said.

Lawyers’ groups have warned that short-sighted access could undermine the cause behind it and stifle open and honest discussion in between lawyers and their clients. The company says that this is a general opportunity that is very important in the most difficult areas of the law such as taxation and cryptocurrency.

But Jonathan M. Redgravewho filed an amicus brief short on behalf of Lawyers for General Courts, said that this issue is more than that industry and may affect all lawyers in it.

Beyond the public prosecutors, it is “difficult to know who will be the common partner of the government,” Buchalter APC shareholder. Mary-Christine Sungaila said. He filed an amicus brief short on behalf of the Federation of Defense & Corporate Counsel supports the broad use of access.

Primary v. Important

The U.S. Court of Appeals for the Ninth Circuit used the narrower “principal purpose” test to determine whether bi-directional communications occurred during the investigation and judgment.

Under that test, communications are only protected if the primary purpose of the communications is to obtain legal advice. “Many lower courts and other legal authorities have upheld and applied such a test,” said the U.S. short.

Sungaila, however, said that the benefits of in-house activities and their external consultants are ignored.

The role of the in-house consultant has doubled, especially in regulated businesses, said Sungaila.

“One of the biggest problems with the main objective test is to focus on the client,” even though “it can be difficult for the company’s officers to know whether they are dealing with a legal issue or a clean business” when they approach them. – housing consultant, he said.

According to Sungaila, impeding the ability of in-house lawyers to provide business guidance and legal advice may deter company officials. from reaching their legal departments – something he says is not good for anyone.

He and another colleague said the court should use a “significance” test instead.

Under that test, access is used “if giving or receiving legal advice is one of the primary—or essential—purposes of the communication,” Ebner said, and “it is not it is the only purpose that matters.”

Because investors often ask their in-house counsel to have legal and business value, “the important test is that the intent is more like how organizations work,” the article said. said Redgrave.

The subject b To the Chief Justice againUS, No. 21-1397, argued 1/9/23.

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