On Monday, the Supreme Court will hear arguments in a little-noticed case that threatens to create a new exception to the attorney-client privilege. Worse, no justification for a new exception for “insignificant” legal-advice communications has been briefed or offered. Over 40 years ago, in Upjohn v. United States (1981), government lawyers urged the court to choose among different privilege “tests.” Chief Justice William Rehnquist, writing for a unanimous court, rejected the request. “[W]e … sit to decide concrete cases, and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area.” The current court should heed this wise counsel when on Monday it considers whether to leave some lawful client-lawyer conversations unprotected.

Before examining how Monday’s case (In re Grand Jury) originated, some legal background. The attorney-client privilege permits clients to rely on confidentiality when they seek legal advice. It is, as Upjohn noted, “the oldest of the privileges for confidential communications known to the common law.” In 2014, then-D.C. Circuit Judge Brett Kavanaugh similarly recognized the scope of this long-standing doctrine, explaining that “the privilege applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client” (In re Kellogg, Brown & Root, D.C. Cir. 2014). There was no “significant” or “primary” purpose limitation in this description of “Upjohn’s [protective] umbrella.”