The attorney-client privilege protects confidential communications between attorneys and clients made in connection with the provision of legal advice. A recurring issue faced by litigants and courts is whether the attorney-client privilege applies to communications that involve legal and nonlegal advice that cannot be disentangled. This issue has proved especially problematic when an attorney is advising the client with respect to the preparation of tax returns.
Last year, when the Supreme Court granted certiorari in In re Grand Jury, No. 21-1397, it appeared ready to resolve a split among the circuit courts of appeals regarding the appropriate test for determining whether the privilege protects such “dual-purpose” communications. On Jan. 23, 2023, however, the court dismissed the writ of certiorari in In re Grand Jury as improvidently granted, disappointing practitioners who had hoped for clear guidance on the issue.