Gareth Evans discusses the need for a uniform, predictable privilege test for dual-purpose communications in the Law360 Tax Authority article, “High Court Privilege Case Could Hinder In-House Counsel.”

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The Ninth Circuit rule "can be very difficult and often just impossible to determine the primary purpose, as opposed to one of the significant purposes of the communications" set by the D.C. Circuit, said Gareth Evans, partner at Redgrave LLP, a law firm that advises in-house counsel in e-discovery.

The Ninth Circuit standard would also be impossible to apply in the current business environment, Evans said, because with companies adopting new communication technologies "the pace of business and lawyers providing legal advice is much faster than two-three decades ago."

"When I started out in legal practice, the fastest way to communicate was through a fax machine," Evans said.  "And things would never be turned in within a day."

Now there has been "an explosion of communications that are findable and discoverable," he said, citing online platforms such as Slack, Microsoft Teams and text messages.

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Labeling communication that needs to be confidential should be judicious, done in good faith and legitimate, otherwise it would defeat the purpose of privilege.  For example, messages about lunch plans with an executive wouldn't fit the bill, Boutros said.

"It must be done where the communication is with a lawyer or is being made on behalf or to assist a lawyer in rendering legal advice," said Evans, noting that people will sometimes label a message privileged to shelter the information from discovery.

"When the privilege is abused in that way, it creates a credibility issue, so it's important that companies train their personnel not to do that," he said.

Access the full Law360 Tax Authority article here.