March 23, 2023

Volume XIII, Number 82


March 22, 2023

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March 21, 2023

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March 20, 2023

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U.S. Supreme Court Dismisses as ‘Improvidently Granted’ Case on Scope of Attorney-Client Privilege

In a per curiam opinion, the U.S. Supreme Court has dismissed the writ of certiorari granted in In re: Grand Jury, No. 21-1397, writing only that it was “improvidently granted.”

The Court heard oral argument on January 9, 2023, on the scope of protection from disclosure of certain communications between attorneys and clients.

The Court can dismiss any granted writ of certiorari as improvidently granted at any point before issuing a decision. It rarely provides reasoning for dismissing a granted writ. For example, here, the opinion was one sentence long: “The writ of certiorari is dismissed as improvidently granted.”

The Court granted certiorari in October 2022 to clarify the scope of attorney-client privilege in the context of dual-purpose communications. Circuit courts are split on the issue, with the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Ninth Circuits defining the scope of privilege by the primary purpose of the communication (primary purpose test). The Court of Appeals for the D.C. Circuit defines the scope of privilege by determining whether one of the significant purposes of the communication was to obtain or provide legal advice (significant purpose test).

Perhaps foreshadowing the disposition of the case, Justice Elena Kagan asked counsel for the petitioner-law firm at oral argument to comment on “the ancient legal principle ‘if it ain’t broke, don’t fix it.’” Justice Sonia Sotomayor was similarly skeptical of the need to weigh in on the split, noting that courts are not struggling to apply the primary purpose test. On the other hand, the justices appeared to struggle to obtain clarity on the limits and contours of the significant purpose test.

Impact on Employers

The Court will not issue a decision in In re Grand Jury, leaving the split in the circuits as it stands. 

Jackson Lewis P.C. © 2023National Law Review, Volume XIII, Number 25

About this Author


Stephanie L. Adler-Paindiris is a Principal and Office Litigation Manager for the Orlando, Florida, office of Jackson Lewis P.C. She is Co-Leader of the firm's Class Actions and Complex Litigation practice group. Her practice focuses exclusively on the representation of employers at the trial and appellate level in state and federal courts, as well as proceedings before administrative judges and agencies.

Ms. Adler-Paindiris has conducted over a dozen trials before juries and judges in state and federal courts. In addition, Ms. Adler has participated in...

Stephanie E. Satterfield Office Managing Principal Jackson Lewis P.C.
Office Managing Principal

Stephanie E. Satterfield is the office managing principal of the Greenville, South Carolina, office and Charlotte, North Carolina, office of Jackson Lewis P.C. Stephanie also serves on the firm’s Board of Directors and is co-leader of the Litigation practice group. She represents employers in employment litigation and advises businesses on practices and policies to foster employee engagement and avoid litigation.

Stephanie has handled all aspects of employment law but focuses on pay equity, sexual harassment training,...