Lawyers, particularly in-house lawyers, across the country had been anxiously awaiting the Supreme Court’s opinion on whether privilege attaches to attorney communications created for legal and non-legal purposes.  In re Grand Jury, No. 21- 1397 (U.S.)  The collective agita was perhaps misplaced, as the Supreme Court dismissed the case as improvidently granted on January 23, 2023. At issue, was an appeal in a Ninth Circuit case in which attorneys for an unnamed law firm focusing on international tax issues argued that certain documents pertaining to the preparation of the client’s tax returns contained privileged legal advice and should be shielded from production as privileged. The circuit fashioned a balancing test, holding that only where “the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice,” will the attorney-client privilege apply. 23 F.4^th 1088, 1091-92.

The specific question accepted for review by the Supreme Court in October was as follows: 

Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

Oral argument was held on January 9, 2023. The Justices pointed out that each side seemed to stray from the tests outlined in their briefs with the petitioner arguing that “any legal purpose” would suffice to protect communications rather than the “significant purpose” test set forth in the briefs. Similarly, the government argued for the “primary purpose” test, but at oral argument espoused a “significant purpose” test which would apply when it is impossible to determine the primary purpose of the communication. This led to a discussion of what percentage of non-legal v. legal advice would apply when attempting to determining the primary purpose with Justice Jackson noting “judges don’t do math.”

Ultimately, Justice Kagan raised “the ancient legal principle, if it ain’t broke, don’t fit it,” to support her conclusion that most courts currently employ the primary purpose test without difficulty which is perhaps why the appeal was dismissed. Attorneys dealing with these issues are frustrated with the outcome as summed up by Susanna McDonald, of the Association of Corporate Counsel who said “[w]ithout guidance from the Supreme Court, the legal landscape for dual purpose communications remains murky[.] Because the circuit courts are split over which test should be used to determine privilege in these situations, in-house counsel are left wondering what test will apply when so many transactions are across state borders and many companies have operations in multiple states.”

Did you hear about the case where the client’s CEO waived privilege by forwarding an email from his company’s counsel to a hotel’s front desk for printing? Whoops!

In Fourth Dimension Software v. Der Touristik Deutschland GMBh, linked below, the CEO of the plaintiff software company (“FDS”) received an email from the company’s former in-house counsel. Because the CEO was traveling in Germany and wanted to review the email before a key business meeting, he forwarded it to the hotel front desk’s email to print. The defendant successfully argued in the district court that forwarding the email to the hotel front desk waived attorney-client privilege.

We need LinkedIn, right? Sure? Yes! LinkedIn has become a very useful and key marketing tool for working professionals, including attorneys. The three most popular uses for LinkedIn are staying connected with colleagues, staying up to date on clients’ news, and as a passive marketing tool.

LinkedIn is a great way to stay connected to colleagues, former classmates, and current and future clients. Many consider it “your professional Facebook.” And while you might be hesitant to brag on Facebook that you were just promoted to partner at your law firm, that sort of announcement is right at home on LinkedIn. It is also a great place to post links to articles or blogs you or your colleagues wrote, or information about your next speaking engagement. Not only will this let your former law school classmates see just how well you are doing, but it will allow others who may need your help on a specific topic or who are also attending that conference where you are speaking, to reach out and get to know you better. Much the same way you use phone calls, educational and training opportunities, newsletters, and social events to stay top of mind with current clients and potential referral sources, you can use LinkedIn to do the same.

The recent litigation surrounding Alex Jones and Infowars Podcast, relating to defamatory statements Jones made about the Sandy Hook Elementary shooting victims and their families, focused on an issue that was not supposed to be the center of this defamation trial.  During the trial, Plaintiff’s counsel confronted Jones on cross-examination with the fact that Jones’ legal team had inadvertently turned over two years’ worth of Jones’ text messages relating to his baseless claims that the Sandy Hook shooting never took place.  The inadvertent production was bad for Jones, however, how it was revealed was even worse. Plaintiff’s lawyer, Mark Bankston, had the following exchange with Jones:

Mr. Jones, did you know that 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years? And when informed, did not take any steps to identify it as privileged or protect it any way, and as of two days ago, it fell free and clear into my possession and that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook.  Did you know that?

Lawyers who assume that the arbitration provisions within their carefully drafted agreements will be enforced may have to re-examine these assumptions. Within the space of less than one month, the Justices waded into three civil matters that dealt with the constant re-arrangement of the deck chairs and fine tuning of the parties’ rights and obligations relating to the application of the Federal Arbitration Act leaving those who practice with less than crystal clear guidance about how to proceed.

On May 23, 2022, in Morgan v. Sundance, Inc., SCOTUS, in a unanimous decision, ruled, contrary to the current positions of 9 of the 11 Circuits, that the requirement by the 8^th Circuit that a showing that the other side has been prejudiced by a delay is not required for a party that has proceeded with litigation to be deemed to have waived its contractual right to arbitrate.  Although the Opinion was only nine (9) pages, the beginning, middle and end focused on one seeming objective of lesser ultimate important; that Courts may not establish law relating to the enforcement of arbitration agreements solely in order to protect the sanctity of arbitration agreements under the FAA.  To quote:  “… federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s ‘policy favoring arbitration.’ If an ordinary procedural rule – whether of waiver or forfeiture or what-have you – would counsel against enforcement of an arbitration contract, then so be it.  The federal policy is about treating arbitration contracts like others, not about fostering arbitration.”

The recent arrest of an armed man who planned to kill Supreme Court Justice Brett Kavanaugh has brought renewed attention to the issues surrounding the personal security of federal judges and their families.  The suspect told investigators that he found Justice Kavanaugh’s home address online.

On June 3, a retired Wisconsin circuit court judge, John Roemer, was shot and killed at his New Lisbon home in what the state attorney general described as a “targeted act” against the judicial system.

There were over 4,500 threats against judges in 2021, according to the U.S. Marshals Service.[1] Credible security incidents and threats against federal judges and court officials quadrupled from 2015 to 2019.

In mid-April, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501 clarifying the meaning of “solicitation” within the Rules of Professional Conduct. More specifically, the new opinion addressed the interplay of the general prohibition against in-person solicitation with the rules relating to misconduct and supervision of non-lawyers. While the new Formal Opinion does not represent a sea change in guidance, it provides crucial reminders about careful management of marketing practices for lawyers seeking paying clients, i.e., most of us.

Model Rule 7.3 on Solicitation prohibits live in-person solicitation of clients for the lawyer’s pecuniary gain, unless the client is another lawyer, a person the lawyer already knows or a person who routinely uses the type of legal services that the lawyer offers. There is significant jurisdictional variation from the Model Rule, with almost every state adopting a somewhat modified version. (See, ABA Jurisdictional Rules Comparison Charts) According to Comment [2], the rule is designed to prevent overreaching by lawyers particularly when potential clients are most vulnerable. The Committee found that there is continuing ambiguity about in-person solicitation by non-lawyers and whether the lawyers benefitting from the solicitation should be ethically responsible for their actions. The Committee examined these issues by way of the following four hypotheticals.

The Supreme Court of New Jersey recently issued its ruling and opinion in the closely watched case of Delaney v. Trent S. Dickey and Sills Cummins & Gross, P.C. (Dec. 21, 2020)(“Sills”), relating to enforcement of a mandatory arbitration agreement in the Sills engagement letter. The Court refused to compel arbitration in that case because Sills had not adequately communicated with its client about the risks and benefits of agreeing to mandatory arbitration in order to make an informed decision. The Court did not go so far as to declare all mandatory arbitration provisions in engagement letters unenforceable, as some feared it might, but it requested additional guidance from the New Jersey Advisory Committee on Professional Ethics on the scope of an attorney’s disclosure requirements in this context.

On January 18, 2022, the Advisory Committee did that and more. The Committee expanded the scope of its mandate by asking the Court to reconsider its decision in Delaney and pronounce that New Jersey lawyers are prohibited from including mandatory arbitration provisions in their engagement agreements, even with appropriate disclosures and counseling. The Committee further proposed uniform guidelines for a separate rider addressing arbitration provisions and stressed the need for oral discussion with a client and recommendation to seek review by independent counsel.