SCOTUS Kicks Off February Session With Four Cases

The U.S. Supreme Court returned to the bench this week to begin their February session. The justices heard oral arguments in four cases, two of which involved labor disputes. In the most high-profile case of the week, the Court addressed the scope of the attorney-client privilege when an attorney provides both legal and non-legal advice.

Below is a brief summary of the issues before the Court:

In re Grand Jury: The case involves the scope of the attorney-client privilege when an attorney is providing both legal and non-legal advice to a client. Supreme Court intervention is necessary because the federal courts of appeal have developed different tests for these so-called “dual-purpose” communications. In the D.C. Circuit, a dual-purpose commu­nication is privileged whenever it has a significant le­gal purpose. In the case before the Court, the Ninth Circuit held that courts must weigh all of the purposes for a communication and that a communication is privileged only where a legal purpose is at least as significant as any non-legal purpose. And, in the Seventh Circuit, dual-purpose communications are never privileged no mat­ter how significant the legal purpose, at least in cases, like the present one, involving tax returns. The specific issue before the Court is “[w]hether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.”

The Ohio Adjutant General’s Department v. Federal Labor Relations Authority: The case stems from a collective-bargaining dispute between the Ohio National Guard and the union that represents its technicians. The justices will decide the following question: Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.

Glacier Northwest, Inc. v. International Brotherhood of Teamsters: In the Court’s second labor dispute of the week, the justices were asked to determine if a company can sue a union for damages caused by striking workers. The specific issue is: “Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute.”

Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc.: Under Dellmuth v. Muth, 491 U.S. 223, 228 (1989), a statute does not abrogate sovereign immunity unless Congress’s intent to abrogate is “unmistakably clear” in the statutory text. The Court has agreed to determine “[w]hether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.”

The Supreme Court is expected to issue decisions in all of the cases before the term concludes in June.