Overview
On November 28, 2022, Law360 published a piece, "Tax Atty Group Urges Justices To Scrap Strict Privilege Test." The article discusses an amicus brief filed by the American College of Tax Counsel (The College) in the case of In re Grand Jury (No. 21-1397).
The issue in the case is when a confidential communication between a lawyer and client made for both legal and non-legal purposes is protected by attorney-client privilege. The College’s brief supports the petitioner’s challenge to the test adopted by the Ninth Circuit, which would require that the legal purpose predominate; the College’s brief asks the Supreme Court to adopt the less-restrictive test adopted by the D.C. Circuit, which requires only that the legal purpose be significant.
In their brief, The College writes that in today's business environment, legal advice and tax return preparation assistance are more entangled than mixed-use communications in other areas. They said, "While acknowledging the need for tax authorities to obtain factual information relevant to assessing tax compliance, the college strongly supports protecting taxpayers' ability to seek legal advice from tax counsel and thus to communicate in confidence about the information needed to obtain appropriate guidance.”
Larry Hill, co-head of Steptoe’s controversy practice and co-author of the brief was quoted in the article, "It is essential that clients should have a high degree of comfort and certainty that their communications with their trusted counsel will retain their confidentiality when the provision of legal advice, intermixed with business advice, is 'a' significant purpose of the communication."
The College’s brief echoes the views of other tax practitioners, that the decision in the Ninth Circuit that mixed-use communications was not legal advice and therefore not privileged had downgraded the tax law practice by characterizing it as merely a return preparation service. Other groups that files briefs include, the Silicon Valley Tax Directors Group, the U.S. Chamber of Commerce, the Atlantic Legal Foundation and the American Bar Association.
Read the article at Law360. [Subscription required]
