In In Re Grand Jury, --- F.4th ---, No. 21-55085 (9th Cir. 2021), the Court affirmed the district court’s orders holding appellants, a company and a law firm, in contempt for failure to comply with grand jury subpoenas related to a criminal investigation.
The opinion's introduction provides a good summary:
Given our increasingly complex regulatory landscape, attorneys often wear dual hats, serving as both a lawyer and a trusted business advisor. Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns.
In this case, the grand jury issued subpoenas related to a criminal investigation. The district court held Appellants— whom we identify as “Company” and “Law Firm”—in contempt after they failed to comply with the subpoenas. The district court ruled that certain dual-purpose communications were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. Appellants argue that the district court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test. We affirm and conclude that the primary-purpose test governs in assessing attorney-client privilege for dual-purpose communications.
