Monday, January 23, 2023

Supreme Court Dismisses Attorney-Client Privilege Case as Improvidently Granted (1/23/2023; 1/25/23)

I recently reported on the Supreme Court  Oral Arguments in In Re Grand Jury (Sup Ct. No. 21-1397), docket entries here.  See On Supreme Court Oral Argument in In Re Grand Jury On Issue of Principal or Significant Purpose for Attorney-Client Privilege (1/10/23; 1/11/23), here.

Today, the Supreme Court entered the following order “Writ of certiorari DISMISSED as improvidently granted. Opinion per curiam.”  See the docket entries linked above and the opinion here.

The Supreme Court does not explain why it dismissed, but I anticipated that dismissal as a possibility based on the comments at oral argument. See the blog above at paragraph 2 as follows:

Justice Jackson’s point is that, if the parties wanting the test to be “significant” rather than “primary” and the courts are already doing "significant" (or less than primary) in practice even when articulating a primary purpose test, shouldn’t the Supreme Court just let the issue alone because there has been no upswell of complaint from the district courts applying the test. Mr. Levin expressed concern that a Supreme Court statement that the test is “primary” (which the courts already stated they were applying even which in actuality applying a significant-type test) will add gravitas to the primary test and cause courts to change their practice to strictly limit the privilege. Does that mean that Mr. Levin’s client was imprudent in asking for cert in the first place? Perhaps, the Court could do a win-win for both parties simply by ducking the issue by saying that cert was improperly granted. As Justice Kagan said (Tr. 33): “I -- I'm wondering if  you would just comment on, you know, the ancient legal principle, if it ain't broke, don't fix it.”

Note, I said improperly granted rather than improvidently granted, but it was the same point.  Technically, the writ was not improperly granted but was improvidently granted. So my choice of words was poor.

JAT Comments:

1. Further on the Supreme Court practice of dismissing a petition for writ of certiorari as improvidently granted. That practice is sometimes referred to as “DIG.” Readers might want to read this blog which discusses the practice: Kevin Russell, Practice Pointer: Digging into DIGs (SCOTUSblog 4/25/19), here in the section titled “The Supreme Court’s DIG practice”.

2. Actually, the Supreme Court "DIGging" the case might be a boon for those who, should I say, improvidently sought certiorari.  The petitioner's counsel claimed that under the current state of the law the courts that might chant some variant of the predominant standard actually applied the "significant" or some lesser standard. So, it could have been worse for those wanting a less than predominant standard.

3, Added 1/25/23 10:15 am:  For an outstanding discussion, see Stephen Gillers, A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury, SCOTUSblog (Jan. 25, 2023, 9:30 AM),  Key excerpts:

After the oral argument in In re Grand Jury, the smart money would have predicted either that the court would affirm the U.S. Court of Appeals for the 9th Circuit or dismiss the case as improvidently granted. On Monday, it dismissed. In fact, one might be left wondering why the court agreed to hear the case in the first place. Yet the dismissal – known as a “DIG” – does not mean that the court has lost interest in the issue raised, only that the facts of the case were not the right vehicle for exploring it.

* * * * 

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.

*  * * *

The absence of the kind of disagreements we have become accustomed to see from the justices leaves one to wonder why the court did not simply write an opinion affirming the 9th Circuit. This is where the decision dismissing the appeal may carry future implications. The easy explanation is that the record, much of it shrouded in grand-jury secrecy, was not the right vehicle to permit the court to address the weighty question presented, whatever the answer. That is, there were not enough public-record facts to avoid an abstract treatment of the question. The more abstract, the less helpful to trial judges.

But there is another explanation. It is that a majority of the court wants to save the issue for a case whose public facts permit a serious evaluation of a question whose answer can expand secrecy and greatly affect the administration of justice. In other words, don’t read anything about the justices’ views into the dismissal. After all, they took the case in the first place, which signals an interest in the subject. They may simply have misread the case as cert-worthy.

A reversal could have led to denying the government documents relevant to its investigation of a grand-jury target even though those documents would not have been privileged but for the fact that the target’s consultation with counsel included incidental legal advice. What the dismissal tells us is that the court was not prepared to say, at this point and on this record, whether that would have been a just result in light of “reason and experience,” which is the standard in Federal Rule of Evidence 501 for defining privileges.

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