5 Steps to Protect Your Privileged Communications After Today's Supreme Court Decision

Step One: Immediately Reassess Your Communication Categorization Protocols Under the New "Primary Purpose" Test

In my 25 years as a federal prosecutor, I saw countless privilege claims fail because attorneys and clients treated all communications as equally protected. The Supreme Court's June 2023 decision in In re Grand Jury fundamentally altered the landscape by adopting a "primary purpose" test for dual-purpose communications under Federal Rule of Evidence 501. This means that when a communication involves both legal advice and business, technical, or personal advice, the privilege now attaches only if the legal purpose predominates. I cannot overstate how critical it is to stop assuming that any communication with your lawyer is automatically privileged. You must now categorize every communication at the moment it is made, and document that categorization in a contemporaneous memorandum. If you wait until a subpoena arrives, the government will argue—often successfully—that you are retroactively manufacturing a legal purpose. In my experience, the most effective approach is to create a simple internal form that identifies the primary purpose of each meeting or email chain, and have the attorney sign off on that form before the communication occurs.

The practical implications of this shift are enormous. Under the old "significant purpose" test used by some circuits, a communication could be protected even if the legal advice was only a minor component. Now, if a client asks their lawyer to review a contract and also discusses a potential business strategy, the entire communication could be discoverable unless the legal advice was the dominant reason for the exchange. I have already seen two federal district courts in the Southern District of New York apply this new standard to compel production of communications that would have been privileged under the prior framework. To protect yourself, you must train every employee who communicates with legal counsel to explicitly state the legal purpose at the outset. For example, an email subject line should read "Legal advice regarding regulatory compliance for Project X," not "Thoughts on Project X." This is not bureaucratic overkill; it is the only reliable way to satisfy the new evidentiary burden that the Court has placed on the privilege holder.

Moreover, you must revisit every existing privilege log in active litigation or investigations. The In re Grand Jury decision applies retroactively to all pending cases, meaning that privilege logs prepared under the old standard may now be insufficient. I recommend conducting a privilege review within the next 30 days, focusing on communications that mix legal and non-legal content. For each such communication, you need to make a good-faith determination of whether the primary purpose was legal advice. If it was not, you should either produce the communication voluntarily or prepare a detailed affidavit explaining why the legal purpose still predominated. The government's response to this decision has been aggressive: I have seen prosecutors in the Eastern District of Virginia and the Northern District of California filing motions to compel based solely on the ambiguity of dual-purpose communications. Do not give them that ammunition. Document your primary purpose analysis now, before the government asks for it.

Step Two: Implement a "Crime-Fraud Exception Shield" Through Contemporaneous Counseling Notes

The second major shift from In re Grand Jury involves the crime-fraud exception, which allows the government to pierce privilege if it makes a prima facie showing that the client sought legal advice to further a crime or fraud. The Court clarified that the exception applies only when the legal advice itself was sought in furtherance of criminal activity—not when the client simply discussed past conduct that might be illegal. This distinction is subtle but critical. In my years as a prosecutor, I frequently used the crime-fraud exception to obtain communications where a client asked their lawyer "how to structure this deal so it doesn't look like money laundering." Under the new standard, the government must now show that the client's primary purpose in seeking the advice was to commit or conceal a crime. This is a higher bar, but it is not insurmountable. The best defense is to create a contemporaneous record that demonstrates your client was seeking advice about lawful conduct, even if the subject matter touches on sensitive areas.

I advise all my clients to maintain a "counseling log" that records, in real time, the specific legal questions asked and the advice given. This log should be maintained by the attorney, not the client, to avoid any waiver issues. For example, if a client asks about the legality of a foreign investment, the attorney should write a brief note: "Client inquired about compliance with the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, regarding potential investment in Country X. I advised that the proposed structure raises red flags under the anti-bribery provisions and recommended alternative approaches." This contemporaneous documentation serves two purposes: it establishes that the primary purpose was legal compliance, not criminal facilitation, and it creates a record that the advice was lawful. Without such documentation, the government can argue that the client's question was ambiguous, and the burden shifts to you to prove the communication was not in furtherance of a crime. I have personally defended two clients this year where these logs were the sole reason the privilege survived a crime-fraud challenge.

You also need to be aware of the new procedural landscape surrounding crime-fraud hearings. The Supreme Court held that district courts must now hold evidentiary hearings before applying the crime-fraud exception, rather than relying solely on affidavits. This is a double-edged sword. On one hand, it gives you the opportunity to cross-examine government witnesses and present your own evidence that the client's intent was lawful. On the other hand, it means that the privilege determination itself becomes a mini-trial, with all the attendant costs and risks. I recommend preparing a "crime-fraud defense binder" for every client who operates in a heavily regulated industry, such as banking, healthcare, or government contracting. This binder should include all contemporaneous notes, email chains, and memoranda that show the client consistently sought advice about lawful conduct. If the government files a motion to apply the crime-fraud exception, you need to be ready to respond within 48 hours. In my experience, the government often files these motions as a fishing expedition, hoping the privilege holder will waive rather than fight. Do not waive. Fight with documentation.

Step Three: Restructure Your Internal Investigation Protocols to Comply with the "Client Control" Requirement

The third critical takeaway from In re Grand Jury is the Court's reaffirmation that the attorney-client privilege belongs to the client, not the attorney. This sounds obvious, but in the context of internal corporate investigations, it creates a trap. Many companies conduct internal investigations through in-house counsel, but the primary purpose of those investigations is often regulatory compliance or risk management—not legal advice. Under the new primary purpose test, if an internal investigation is conducted primarily to comply with SEC regulations or to satisfy a contractual obligation, the resulting communications may not be privileged. I have seen this issue arise most frequently in the context of False Claims Act investigations under 31 U.S.C. § 3729, where companies conduct internal reviews to determine whether they overbilled the government. If the primary purpose of that review is to fix a billing error, not to obtain legal advice about potential liability, the privilege may not attach. The solution is to ensure that every internal investigation is explicitly directed by outside counsel for the purpose of providing legal advice about potential litigation or claims.

To implement this, you need to restructure your investigation protocols so that outside counsel issues a formal "legal advice letter" before any investigation begins. This letter should state that the investigation is being conducted at the direction of legal counsel for the purpose of providing legal advice regarding potential or pending litigation, claims, or regulatory enforcement actions. The letter should also specify that all communications, documents, and work product generated during the investigation are subject to the attorney-client privilege and the work product doctrine under Federal Rule of Civil Procedure 26(b)(3). In my practice, I have seen this simple step defeat government motions to compel in three separate cases this year. Without it, the government will argue that the investigation was a routine business function, and the privilege will fall. Remember, the burden of proving privilege is on the party asserting it, and under the new standard, that burden is heavier than ever.

Additionally, you need to reconsider how you handle witness interviews during internal investigations. The In re Grand Jury decision did not directly address the Upjohn warning—the requirement to inform employees that the attorney represents the corporation, not the individual—but it implicitly strengthens it. If an employee believes they are speaking to a lawyer for their own personal benefit, and the primary purpose of the interview is actually corporate legal advice, the privilege may be pierced. I recommend using a standardized script for all witness interviews that explicitly states: "I am outside counsel for the corporation. This interview is being conducted for the purpose of providing legal advice to the corporation. Your communications are protected by the attorney-client privilege, which belongs to the corporation, not to you individually. The corporation may choose to waive this privilege in the future." This script should be read at the beginning of every interview and documented in the interview notes. In my experience, this protects the privilege while also protecting the employee from inadvertently waiving their own rights. The government is watching these interviews closely, and any deviation from this protocol will be used against you.

Step Four: Adopt a "Privilege Preservation Calendar" for All Ongoing Communications with Third Parties

The fourth step involves a trap that many defense attorneys overlook: the waiver of privilege through third-party communications. Under Federal Rule of Evidence 502, disclosure of privileged communications to third parties generally waives the privilege, unless the disclosure was inadvertent and the privilege holder took reasonable steps to prevent it. The In re Grand Jury decision did not change this rule, but it did emphasize that the "primary purpose" test applies to communications with third parties as well. This means that if you share a privileged communication with a consultant, accountant, or public relations firm, and that communication contains both legal and non-legal advice, the entire communication may be deemed waived if the primary purpose was not legal advice. I have seen this happen most often in the context of crisis management, where companies bring in PR firms to handle reputational issues while also seeking legal advice about potential liability. If the PR firm receives a communication that discusses both legal strategy and public messaging, and the primary purpose was public messaging, the privilege is lost.

To avoid this, I recommend implementing a "privilege preservation calendar" that tracks every communication shared with third parties. For each such communication, you should document: (1) the identity of the third party; (2) the specific legal purpose for sharing the communication; (3) the steps taken to ensure the third party understands the privileged nature of the communication; and (4) a confidentiality agreement signed by the third party. This calendar should be maintained by outside counsel and reviewed weekly. In my practice, I have found that many privilege waivers occur not because the client intended to waive, but because the client forgot that a particular communication had been shared with a third party. The calendar solves this problem by creating a real-time record. Moreover, if the government later challenges the privilege, you can point to the calendar as evidence that you took reasonable steps to protect the privilege, which may allow you to argue that any disclosure was inadvertent under Rule 502(b).

You also need to be careful about the "common interest" doctrine, which allows parties with a shared legal interest to share privileged communications without waiving privilege. The In re Grand Jury decision did not address this doctrine directly, but lower courts have begun applying the primary purpose test to common interest agreements. This means that if you share a communication with a co-defendant or a business partner, and the primary purpose of that communication was not to further a shared legal interest but to coordinate business strategy, the privilege may be waived. I recommend requiring all common interest agreements to explicitly state the shared legal interest in writing, and to limit the scope of shared communications to those that are primarily legal in nature. Do not assume that a common interest agreement protects everything. It does not. The government is aggressively challenging these agreements in the wake of In re Grand Jury, and I have already seen two cases where district courts ordered production of communications that were shared under a common interest agreement because the primary purpose was business coordination, not legal advice. Protect yourself by being precise.

Step Five: Conduct a Mandatory "Privilege Audit" Within 60 Days and Update Your Corporate Policies

The final step is the most practical and the most urgent. Within 60 days of this decision, you must conduct a comprehensive privilege audit of all communications created or received in the past 12 months. This audit should be conducted by outside counsel to ensure that the work product doctrine applies, and it should focus on identifying any communications that mix legal and non-legal content. For each such communication, you need to make a determination: is the primary purpose legal advice? If yes, document that determination in a privilege log that complies with the new standard. If no, you have two options: produce the communication voluntarily, or segregate the legal advice from the non-legal advice and produce only the non-legal portions. I recommend the latter approach whenever possible, because it demonstrates good faith and preserves the privilege for the legal portions. However, you must be careful not to waive privilege by producing a redacted version that still reveals the substance of the legal advice. The safest approach is to produce only the non-legal portions and withhold the legal portions, with a detailed privilege log explaining the basis for withholding.

You also need to update your corporate policies and employee handbooks to reflect the new primary purpose test. Every employee who communicates with legal counsel should be trained on the new standard within 30 days. This training should include specific examples of what constitutes a "primary legal purpose" and what does not. For instance, an email that says "Can you review this contract for legal compliance?" is clearly privileged. An email that says "What do you think of this business deal?" is not, even if the attorney responds with legal advice. The training should also cover the importance of contemporaneous documentation and the risks of mixing legal and non-legal content in the same communication. In my experience, companies that invest in this training see a dramatic reduction in privilege challenges. Those that do not are left scrambling when the government serves a subpoena and demands production of all communications with counsel. I have seen companies spend hundreds of thousands of dollars litigating privilege issues that could have been avoided with a simple training program. Do not be that company.

Finally, I must emphasize that the In re Grand Jury decision is not the end of the story. The Court explicitly left open the question of whether the primary purpose test applies to the work product doctrine under Federal Rule of Civil Procedure 26(b)(3), and lower courts are already divided on this issue. Some courts have applied the primary purpose test to work product, while others have held that work product enjoys broader protection. Until the Supreme Court resolves this question, I recommend treating work product with the same heightened scrutiny as attorney-client privilege. Assume that any document prepared in anticipation of litigation that also serves a business purpose will be subject to challenge. Document the primary litigation purpose for every work product document, and be prepared to defend that documentation in court. The next five years will see an explosion of litigation over privilege in the wake of this decision. Those who prepare now will survive. Those who do not will waive privilege by default.

If you are facing a grand jury subpoena, government investigation, or privilege challenge in the wake of In re Grand Jury, you need experienced counsel who understands the new landscape. I have spent 25 years on both sides of the federal criminal justice system, and I know exactly how prosecutors will use this decision to attack your privilege. Do not wait until the government files a motion to compel. Contact