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Justices Toss Case Seeking Clarification of Attorney Privilege

Jan. 23, 2023, 3:26 PM

The US Supreme Court threw out a case closely watched by in-house counsel about the scope of the attorney client privilege, saying they shouldn’t have taken it up in the first place.

During arguments in January, the justices suggested that federal courts are already applying the proper test—a hybrid one that seeks to disentangle the legal and business purposes behind attorney communications.

In a one sentence order Monday, the justices said the case had been “improvidently granted.”

Justice Elena Kagan suggested at the argument that the court follow the “ancient legal principle, if it ain’t broke, don’t fix it.”

The case involves grand jury subpoenas issued to an unnamed company and its law firm and communications over international tax issues and the ownership of crypotocurrency.

The case is In re Grand Jury, U.S., No. 21-1397, 1/23/23.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com