Bass, Berry & Sims attorneys Jessie Zeigler, Jeremy Gunn, Garrah Carter-Mason and Johnny Cerisano authored an article for In-House Defense Quarterly magazine examining the current trends and developments in privilege law, including a discussion of the U.S. Supreme Court’s recent withdrawal of its grant of certiori as “improvidently granted” in the In re Grand Jury case. The doctrine of attorney-client privilege exists to preserve and protect privilege and avoid disclosure of privileged communication between attorneys and clients. The authors outline three attorney-client privilege developments related to the following:

  • Dual-purpose communications containing legal and non-legal advice: As the lines blur between legal and business advice, the courts have split on what exactly is protected communication between attorneys and clients. Attorney-client privilege protects only those disclosures necessary to obtain informed legal advice. As the authors note, amid the splits in the circuit courts, since the U.S. Supreme Court has now declined to hear the In re Grand Jury case “… the issue as to whether dual-purpose communications are protected by attorney-client privilege is still open.”
  • Communications with insurance brokers: In the article, the attorneys state that, “While generally the attorney-client privilege is limited in that only ‘confidential’ communications (e. communications made exclusively between an attorney and client) are protected and the presence of a third party on a communication generally loses the privilege, courts have recognized circumstances when a third-party disclosure does not vitiate the protections of the doctrine.”
  • Testifying, but non-reporting experts: The authors state that “Whether communications with such experts are protected is a complex determination that depends on the nature of the testimony and whether the expert will serve as a hybrid fact/expert witness.”

The full article, “Can You Keep a Secret? Current Trends in Privilege Law,” was published in the Winter 2023 edition of In-House Defense Quarterly magazine and is available online.