Wednesday, January 11, 2023

The Scope of "Legal" Advice

 by Michael C. Dorf

On Monday, the Supreme Court heard oral argument in In Re Grand Jury. The case presents a not-especially-ideologically-loaded question: when a lawyer participates in a conversation with a client, how much of the conversation must be law-related for the attorney-client privilege to shield it? Lawyer Daniel Levin, arguing for the petitioner, urged a rule under which a conversation or document is protected if obtaining legal advice is a "significant purpose" of the conversation or document.

The rule in most U.S. states is that for the privilege to apply the "primary" purpose of the conversation or document must be legal advice. The U.S. argued that should also be the rule in federal court with respect to contested federal questions. Federal Rule of Evidence 501 directs federal courts to look to fashion a common law of privilege "in the light of reason and experience." That directive leaves SCOTUS free to choose a different rule from the one applied by state courts, but as Justice Sotomayor highlighted in her questioning, there should be at least a presumption in favor of adopting the approach of most states. After all, ex ante, neither lawyer nor client knows whether a case will end up in state or federal court. Indeed, even in federal court with respect to state substantive issues (as in a diversity or supplemental jurisdiction case), state privilege law applies. Harmonizing federal law with state law would thus facilitate planning.

Mr. Levin's chief responses to the uniformity concern were: (1) already some states (he gave Texas as an example) use the significant purpose test; (2) when one examines the state cases that recite the primary purpose test, one discovers that, as applied, it's more like the significant purpose test he advocates; and (3) after SCOTUS rules, many or most state courts will construe state privilege to follow the federal lead.

Much of the argument focused on the question whether "primary" is a preponderance (i.e., >50%) standard and, regardless, whether it should be quantified at all. In the end, I came away uncertain about how the Court will or should rule. Here, however, I want to focus on a point that struck me as odd: an unduly narrow definition of what counts as a lawyer giving legal advice.

Mr. Levin wisely conceded that not every meeting that a lawyer attends is, ipso facto, shielded by privilege. As an example of a meeting that would not be, he offered: "you call a lawyer to sit in a meeting  . . . in the corner while you talk business . . . because, hypothetically, maybe the lawyer will spot something and say something. That I would say is pretextual."

That's a bit confused. People in a criminal enterprise might hire a lawyer to sit in the corner during an illicit meeting in the hope that they will thereby shield the conversation, even though they know there's no realistic possibility that anything the lawyer might say will affect the outcome of the meeting. That would be pretextual. But, as Justice Kagan noted in questions, there might be a perfectly good non-pretextual reason to have a lawyer sit in on what is primarily a business meeting. Maybe the lawyer will notice a legal obstacle to some part of the plan. A non-criminal enterprise might well hire a lawyer to sit in the corner. Even so, Mr. Levin conceded that the lawyer's presence in those circumstances (as distinct from any particular legal advice the lawyer gives if they do chime in) is not sufficiently "significant" to satisfy his test.

Whether that ends up being important is hard to say. For now, I want to focus on a subtler but perhaps more damaging--and to my mind unnecessary--concession Mr. Levin made. The cert question in the case is how much of a conversation needs to be law-related for the privilege to apply, but there's a threshold question about what counts as a law-related discussion in the first place. That comes up both for counting purposes and for determining what non-privileged-because-non-law-related matters can be separated out from the legal matters. At one point, Mr. Levin articulated the line this way:

Someone goes in [to a law office] and asks a lawyer "should I fight for the house in the divorce?". There's property as the legal part of that and there's probably emotional and personal parts of that and it's tied together. So you can have situations where it's very hard to disentangle if not impossible to disentangle.

To my mind, that concedes too much. I agree that the "emotional and personal parts" are "impossible to disentangle" from "the legal part," but that's because a fully competent divorce lawyer, like any fully competent lawyer, will attend to the client's emotions and personal needs as part of the practice of law

Model Rule of Professional Responsibility 1.4, which governs attorney-client communications (in jurisdictions that follow the Model Rules or their equivalent), specifies that "a lawyer shall . . .  reasonably consult with the client about the means by which the client's objectives are to be accomplished." More broadly, under Rule 1.2, "a lawyer shall abide by a client's decisions concerning the objectives of representation . . . ." To serve a client's objectives, a lawyer must know what they are. A divorce client probably wants to know what the likelihood is of winning the house in a contested process, but the client might not want to seek the house if it will mean a serious hardship for the children. Clients might not be clear in their own minds what their objectives are. Talking to the lawyer can clarify objectives for clients. The whole conversation is part of the legal representation.

I have been a lawyer for over three decades. During most of that time, I've been a full-time law professor, but between pro bono, consulting, and various one-off cases, I've had my share of conversations with clients. Especially if I'm meeting a client before any papers have been filed, I've often had the experience of concluding that the client's problem is different from what they think.

The client thinks the problem is that the landlord refuses to enforce the quiet hours rules against the neighbor, but while the quiet hours lease term binds the client, it doesn't impose an obligation on the landlord to enforce a parallel provision in the neighbor's lease. Even so, I don't tell the client "sorry, you're not a third-party beneficiary of the neighbor's lease term, so you lose, now go away." After I explain why the neighbor's lease doesn't help, we discuss whether there are other means of achieving their ends. Have you registered your complaint directly with the neighbor? Would the neighbor be amenable to mediation? Etc. Critics thought that Charles Fried's idea of "lawyer as friend" was inaccurate in various respects, but one thing Fried got right is that a good lawyer-client relationship is fundamentally interpersonal.

In less than a week begins the third iteration of Cornell's MSLS, a master's program in law designed for people who work in business or the public sector and interact with but don't want to be lawyers. The program is taught mostly asynchronously and remotely, with online interactions (including in Zoom office hours) with the faculty who appear as talking heads in the videos. I am the instructor in the first class in the program: Introduction to the U.S. Legal System, which necessarily includes a little of everything, somewhat skewed by my interests and quirks. In making the videos and curating the other content, I was  constantly reminded by the producers at eCornell to highlight how the course is relevant to people who won't be lawyers. A major theme that emerged in my videos and other materials was communication.

I explain to the MSLS students that a good lawyer should listen carefully to the client. If they have a lawyer who doesn't understand or pursue their goals, they should find a different lawyer. But I also tell the students that part of what they're learning in the program is how to be (on behalf of themselves or their organizations) better clients--ones who hear when a lawyer says that the law forecloses a certain path but then offers other means of achieving the ultimate objective. I tested this notion with some lawyer friends who have more frequent client contact than I do, and they agreed.

So, to come back to the In Re Grand Jury case, I hope that whatever the Court decides about the relative amount of law talk there needs to be in a conversation for the privilege to apply, the Court will also recognize that a lot of what lawyers do as lawyers is to attend to matters that reflect the complexity of human lives.

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