9th Circuit to Hear Oral Argument on Scope of Attorney-Client Privilege for Mixed Business/Legal Communications
Daily Journal
In this article, Alejandro Sarria and Bradley Markano address the complex issue of attorney-client privilege in mixed business/legal communications. The authors are attorneys representing amicus curiae the Atlantic Legal Foundation in their brief on this topic. In the article, Sarria and Markano discuss the current state of ambiguity concerning the applicable privilege standard in the Ninth Circuit. They also discuss arguments submitted to the court for the adoption of the D.C. Circuit's "significant purpose" test, which recognizes privilege when legal advice is a primary purpose of a communication – even if not the sole or predominant one. The authors also discuss the importance of clarity in privilege doctrine to ensure that businesses can seek legal counsel without fear of inadvertent waiver, which is one of the foundational goals of the attorney-client privilege as articulated by the U.S. Supreme Court.