The attorney-client privilege is meant to protect from disclosure confidential communications between attorneys and their clients concerning legal advice. It allows Americans to fully understand and benefit from the law, without necessarily being attorneys. A “dual purpose communication” is essentially one between an attorney and her client made for purpose of receiving or providing legal advice, as well as non-legal advice. Sometimes such “dual purpose communications” attract motions to compel when withheld by a party in discovery proceedings based on privilege.

In a case styled In Re Grand Jury, the Ninth Circuit Court of Appeals held “that the primary-purpose test applies to attorney-client privilege claims for dual-purpose communications.” In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021). On certiorari, the Supreme Court was about to decide whether a communication involving both legal and non-legal advice is protected by the attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication (i.e., not the “primary purpose”). However, on Jan. 23, 2023, the Supreme Court punted on deciding the issue when it dismissed the appeal because certiorari was “improvidently granted.” In re Grand Jury, No. 21-1397, 2023 WL 349990 (Mem), at *1 (U.S. Jan. 23, 2023). Nonetheless, for Texas practitioners, the widely followed Supreme Court proceedings do bring to the fore the question: How do Texas courts deal with such “dual purpose communications”? This article examines that issue.

SCOTUS Punts on Deciding the Federal Standard

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