The U.S. Supreme Court agreed on Monday to take up an issue with profound consequences for lawyers who advise clients on complex issues with both legal and business implications.
told the Supreme Court that the competing 9th and D.C. Circuit privilege tests — as well as a wild-card 7th Circuit holding that tax advice is never privileged — have left practitioners scratching their heads about whether their client communications are susceptible to discovery.
The Washington Legal Foundation’s amicus brief highlighted the role of in-house lawyers, whose advice to corporate executives frequently mingles business and legal considerations. The group argued that the 9th Circuit’s test will chill those discussions: “There is no reason,” the amicus brief said, “for in-house counsel to give legal advice if communications can later be disclosed during a government investigation or civil litigation.
If you are a regular reader of my column, however, you know that the 9th Circuit’s Grand Jury test is not limited to tax cases. Ilast week about a fight between Apple Inc and shareholder lawyers over internal Apple documents, including emails between CEO Tim Cook and Apple’s general counsel as the company weighed an unusual public revision of revenue estimates in late 2018. The trial judge in the Apple class action, U.S.
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