ex parte
Ex parte means “from one party” in Latin. In law, the term is used in multiple contexts, particularly in legal ethics and civil procedure.
wex
LEGAL ETHICS
In re Grand Jury
Issues
Is a communication between a client and their lawyer that involves both legal and non-legal advice protected by attorney-client privilege if obtaining legal advice was a significant purpose of the communication, but not its primary purpose?
This case asks the Supreme Court to clarify whether communications involving both legal and non-legal advice (i.e., dual-purpose communications) are evaluated under the primary purpose test or the significant purpose test when determining whether communications are protected by the attorney-client privilege. The petitioner, a law firm, argues that the significant purpose test should be adopted because it is necessary to avoid deterring the communications the privilege exists to protect. The United States argues for the primary purpose test, contending that the significant purpose test would improperly and unnecessarily expand the privilege. This case has significant implications for protecting client honesty with their lawyers while also not excessively shielding the production of otherwise discoverable materials.
Questions as Framed for the Court by the Parties
Whether a communication involving both legal and non-legal advice is protected by the attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.
Pursuant to a criminal investigation, a grand jury issued subpoenas to the target of the investigation, the owner of a company who is also a client of a tax law firm. In re Grand Jury at 1090. These subpoenas requested communications and documents related to the investigation. Id.
Additional Resources
- Jared E. Dwyer, Barbara T. Kaplan, & Courtney A. Hopley, U.S. Supreme Court Grants Certiorari in Case Involving Application of Attorney-Client Privilege to Dual-Purpose Communications with Tax Attorneys, Greenberg Traurig (Oct. 6, 2022).
- Alison Frankel, U.S. Supreme Court Grants Review in Crucial Attorney-Client Privilege Case, Reuters (Oct. 3, 2022).
- Alison Frankel, ABA Asks Supreme Court for Client Privilege Protection Beyond what Business Groups Want, Reuters (Nov. 28, 2022).
- Dan Schweiter, Supreme Court Report: In re Grand Jury, 21-1397, National Association of Attorneys General (Oct. 17, 2022).
Submit for publication
0
McCoy v. Louisiana
Issues
Can a defendant’s lawyer concede the defendant’s guilt after the defendant explicitly instructs the lawyer to plead not guilty?
Court below
The Supreme Court will decide whether Larry English, trial counsel for Robert McCoy, violated McCoy’s Sixth Amendment right to effective assistance of counsel by conceding McCoy’s guilt against McCoy’s wishes. McCoy was arrested in Idaho and charged in Louisiana with a triple homicide. English believed that maintaining McCoy’s innocence in the face of overwhelming evidence would lead to the death penalty for his client, so English went against his client’s wishes and conceded guilt to the jury, hoping to receive leniency in sentencing. The jury returned a guilty verdict and recommended the death penalty. The Louisiana Supreme Court upheld the conviction and McCoy appealed the constitutional question to the Supreme Court. McCoy argues that the Sixth Amendment guarantees him autonomy to decide whether he, or his counsel, will admit guilt. Louisiana argues that once a defendant accepts the assistance of counsel he cedes control over all strategic decisions, including the decision to concede guilt. McCoy also claims that English acted unethically and failed to provide effective assistance of counsel, which Louisiana denies. The outcome of this case could reshape the client-counsel relationship in criminal cases.
Questions as Framed for the Court by the Parties
Whether it is unconstitutional for defense counsel to admit an accused’s guilt to the jury over the accused’s express objection.
On May 29, 2008, a grand jury indicted Robert Leroy McCoy for three counts of first degree murder. See State v. McCoy, 218 So. 3d 535, 544 (La. 2016). McCoy entered a plea of not guilty to all charges.
Edited by
Additional Resources
- Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, New York Times (Oct. 9, 2017).
- Debra Cassens Weiss, Can a Lawyer Concede Guilt Over a Client’s Objection? Supreme Court to Consider Constitutional Issue, ABA Journal (Sept. 28, 2017).
- Robert Barnes, Supreme Court Ponders if Lawyer Can Concede Client’s Guilt When Accused Claims Innocence, Washington Post (Oct. 8, 2017).
Submit for publication
0