In a development that no doubt came as a surprise to the many in-house and outside counsel following the case because it involves the attorney-client privilege, the Supreme Court on January 23 dismissed In re Grand Jury following oral argument. It did so on the grounds that certiorari was improvidently granted (often referred to as a “DIG”). Consistent with its usual practice, the Court did not explain its rationale for the DIG. What transpired during oral arguments, however, may offer some insight.
The Court had the rare opportunity to provide guidance on an important privilege issue—the appropriate test for determining whether the attorney-client privilege protects “dual-purpose” communications (i.e., those that have inextricably intertwined business and legal purposes).