January 19, 2023

A Lighthearted Look at "Notable" Quotes from In re Grand Jury Oral Arguments

Holland & Knight Alert
Abbey Benjamin Garber | Mary A. McNulty | Lee S. Meyercord | Daniel Graham Strickland

The U.S. Supreme Court heard oral arguments on Jan. 9, 2023, in the In re Grand Jury case. Despite the nondescript title, the stakes in the case are stratospheric for the future of the attorney-client privilege.

The Supreme Court heard arguments in a case involving the standards for evaluating attorney-client privilege where communication has legal and non-legal purposes. For brief background, a federal district court held a law firm, whose name is sealed, in contempt for its failure to produce certain documents, and the U.S. Court of Appeals for the Ninth Circuit upheld that ruling. According to the Ninth Circuit's opinion summary, "The panel affirmed the district court's orders holding appellants, a company and a law firm, in contempt for failure to comply with grand jury subpoenas related to a criminal investigation, in a case in which the district court ruled that certain dual-purpose communications were not privileged because the 'primary purpose' of the documents was to obtain tax advice, not legal advice."

Rather than joining the chorus of speculators on the outcome, which the authors have been doing internally for months, we thought a top 10 list of notable, out-of-context and out-of-order quotations (plus a bonus quote!) might be a more enjoyable addition to your inbox.

Without further ado:

10. Justice Elena Kagan: "[T]here's no particular evidence of confusion, nor is there any particular evidence of chill."

9. Mr. Daniel Levin (counsel for petitioner): "It's not a bad thing to talk to a lawyer."

8. Ms. Masha Hansford (on behalf of the respondent/U.S. government): "The public has a right to every man's evidence."

7. Justice Kagan: "I have to say just as you have one case, so too you have one ... secondary authority … ."

6. Ms. Hansford: "[W]e are fine with ... a tie goes to the runner rule … ."

5. Justice Ketanji Brown Jackson: "The court is not doing math."

4. Justice Samuel Alito (to one party): "So it's a change -- you've changed your position?"

3. Justice Alito (to the other party): "I think you're walking away from your argument too."

2. Justice Neil Gorsuch: "I am really confused now."

1. Justice Kagan: "I'm wondering if you would just comment on ... the ancient legal principle, if it ain't broke, don't fix it."

Bonus Quote

Ms. Hansford (in a quote that sums up every lawyer's argument): "[W]hether a long opinion or short opinion in our favor, we don't have a very strong position on that."

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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