Kramer Levin Files SCOTUS Amicus Brief on Behalf of NYIPLA Supporting Privilege Protection for Dual-Purpose Communications

On Nov. 17, Kramer Levin filed a merits stage amicus brief in the Supreme Court of the United States on behalf of the New York Intellectual Property Law Association in In re Grand Jury, No. 21-1397. The Court has been asked to decide whether a communication involving both legal and nonlegal advice is protected by the attorney-client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication. The courts of appeals are divided on this basic issue. In the Ninth Circuit, along with other circuits such as the Second Circuit and Federal Circuit, for a communication to be protected by the privilege obtaining or providing legal advice must be the predominant purpose of the communication. In the DC Circuit, a communication is protected by attorney-client privilege as long as a significant purpose of the communication was to obtain or provide legal advice. The brief urges the Supreme Court to adopt the DC Circuit’s approach as it is more certain and predictable. Intellectual property lawyers routinely provide advice on both business and legal matters and necessarily engage in dual-purpose communications to provide effective and efficient representation. The significant-purpose test furthers frank and full communication between clients and their lawyers which, in turn, allows for meaningful advice.

The full brief can be downloaded here.