EVAN DAVIS’ Case to be Argued in the Supreme Court
In early October 2022, the U.S. Supreme Court accepted Evan Davis’s case for argument. The case, a criminal grand jury matter titled In re Grand Jury, Case No. 21-1397, will answer the question: what test should courts use to determine when dual-purpose communications (where a client seeks both legal and non-legal advice) are protected by the attorney-client privilege? Evan, who represents a law firm that provided legal and tax return preparation advice to a client who was expatriating and had complex legal and tax issues, including cryptocurrency related, argued before the Ninth Circuit that so long as the legal advice purpose was “substantial,” the communications should be protected by the attorney client privilege. Then-Judge Kavanaugh authored an opinion adopting this “substantial purpose” test when he was a judge on the D.C. Circuit Court of Appeals. The Ninth Circuit disagreed, holding, as another circuit had done, that the legal advice purpose had to “predominate,” otherwise the dual-purpose communication wasn’t protected by privilege. Evan and a team of fantastic appellate specialists argued in a certiorari petition to the Supreme Court that there was a circuit split that needed to be resolved to give certainty to lawyers and clients throughout the country, so they know whether their communications will be protect. The case made the cut for Supreme Court review, one of just nine accepted out of what reporters have said would normally be around 2,000 cert petitions being reviewed in the October group.
A number of high-profile amicus briefs will be filed, including by the American Bar Association, supporting Evan’s position. These briefs are emphasizing the importance in not just the tax context, but for all lawyers, to have a strong and predictable attorney-client privilege. Law360 reported on the first amicus brief on November 21, calling In re Grand Jury a “highly watched case.” Click Here for the article (subscription required).
Oral argument is scheduled for January 9, 2023.
Click Here for the Brief