By: Michael A. Morse
It is commonplace for attorneys and compliance officers (particularly those who are also attorneys) to receive communications from clients that have more than one purpose. Take, for example, a doctor who calls a friend and the hospital’s compliance officer to set up a dinner for their families. During that call, the doctor mentions that he is thinking about starting his own practice and asks the compliance officer if he believes it is a good idea. Later in the conversation, the doctor mentions to the compliance officer that one of her colleagues has a habit of looking into the records of other physicians’ patients, and the doctor says she finds this “creepy.” The doctor asks the compliance officer if he is obligated to report the colleague for a potential HIPAA violation. While you might assume the attorney–client privilege protects this conversation between the doctor and compliance officer/attorney, that assumption can easily be wrong.
This hypothetical situation raises the issue of “dual-purpose communications,” which are communications between a lawyer and client that have both legal and nonlegal purposes. Dual-purpose communications occur routinely in businesses across the country, particularly in highly regulated areas such as healthcare compliance. Recent decisions by the United States Court of Appeals for the Ninth Circuit and the United States Supreme Court have drawn into question how courts will determine whether dual-purpose communications are protected by the attorney–client privilege.
Courts have historically used one of two tests to analyze whether dual-purpose communications should be protected by the attorney–client privilege. First, under “the primary purpose” test, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice. Second, the broader “a primary purpose” or “substantial purpose” test courts look at whether one primary purpose of the communication is to give or receive legal advice. This distinction, between whether legal advice was a primary purpose or the primary purpose, may appear semantic; however, it can have a game-changing impact on the free flow of information that is essential to compliance investigations and the work of in-house legal counsel.
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Copyright 2023 Compliance Today, a publication of the Health Care Compliance Association (HCCA).