FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE GRAND JURY. Nos. 21-55085

21-55145

D.C. Nos.

2:20-cm-00046-UA-1

2:18-cm-01758-UA-1

OPINION

Appeal from the United States District Court

for the Central District of California

John Kronstadt, District Judge, Presiding

Argued and Submitted June 7, 2021

Pasadena, California

Filed September 13, 2021

Before: Mary H. Murguia, Bridget S. Bade, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee
2 IN RE GRAND JURY

SUMMARY*

Grand Jury Subpoenas

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.

Appellants argued that the district court erred in relying 

on the “primary purpose” test and should have instead relied 

on a broader “because of” test. 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. The “because of” test—which 

typically applies in the work-product context—considers the 

totality of the circumstances and affords protection when it 

can fairly be said that the document was created because of 

anticipated litigation, and would not have been created in 

substantially similar form but for the prospect of that 

litigation. The panel rejected appellants’ invitation to extend 

the “because of” test to the attorney-client privilege context, 

and held that the “primary purpose” test applies to dualpurpose communications.

The panel left open whether this court should adopt “a

primary purpose” instead of “the primary purpose” as the

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
IN RE GRAND JURY 3

test, as the D.C. Circuit did in In re Kellogg Brown & Root, 

Inc., 756 F.3d 754 (D.C. Cir. 2014). The panel wrote that 

Kellogg’s reasoning in the very specific context of corporate 

internal investigations does not apply with equal force in the 

tax context, and that the disputed communications in this 

case do not fall within the narrow universe where the 

Kellogg test would change the outcome of the privilege 

analysis.

The panel addressed remaining issues in a concurrently 

filed, sealed memorandum disposition.

COUNSEL

Thomas F. Carlucci (argued), Foley & Lardner LLP, San 

Francisco, California; Evan J. Davis (argued), Hochman 

Salkin Toscher Perez P.C., Beverly Hills, California; for 

Movants-Appellants.

Mark S. Determan (argued) and Joseph B. Syverson, 

Attorneys; S. Robert Lyons, Chief, Criminal Appeals & Tax 

Enforcement Policy Section; David A. Hubbert, Acting 

Assistant Attorney General; Tracy Wilkison, Acting United 

States Attorney; Tax Division, United States Department of 

Justice, Washington, D.C.; for Plaintiff-Appellee.
4 IN RE GRAND JURY

OPINION

LEE, Circuit Judge:

Given our increasingly complex regulatory landscape, 

attorneys often wear dual hats, serving as both a lawyer and 

a trusted business advisor. Our court, however, has yet to 

articulate a consistent standard for determining when the 

attorney-client privilege applies to dual-purpose 

communications that implicate both legal and business 

concerns.

In this case, the grand jury issued subpoenas related to a 

criminal investigation. The district court held Appellants—

whom we identify as “Company” and “Law Firm”—in 

contempt after they failed to comply with the subpoenas. 

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. Appellants argue that the district court erred in 

relying on the “primary purpose” test and should have 

instead relied on a broader “because of” test. We affirm and 

conclude that the primary-purpose test governs in assessing 

attorney-client privilege for dual-purpose communications.1

BACKGROUND

Company and Law Firm were each served with grand 

jury subpoenas requesting documents and communications 

related to a criminal investigation. The target of the criminal 

investigation is the owner of Company as well as a client of 

Law Firm. In response to the grand jury subpoenas, 

1 This opinion only addresses the issue of dual-purpose 

communications. The remaining issues on appeal are resolved in a

concurrently filed, sealed memorandum disposition.
IN RE GRAND JURY 5

Company and Law Firm each produced some documents but 

withheld others, citing attorney-client privilege and the 

work-product doctrine.

The government moved to compel production of the 

withheld documents, which the district court granted in part. 

In those orders, the district court explained that these 

documents were either not protected by any privilege or 

were discoverable under the crime-fraud exception. 

Company and Law Firm disagreed with the district court’s 

privilege rulings, so they continued to withhold the disputed 

documents. The government followed up with motions to 

hold Company and Law Firm in contempt, both of which the 

district court again granted. These appeals followed, and we 

have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

Whether the attorney-client privilege applies to specific 

documents represents “a mixed question of law and fact 

which this court reviews independently and without 

deference to the district court.” United States v. Richey, 

632 F.3d 559, 563 (9th Cir. 2011) (cleaned up). The district 

court’s legal rulings about the scope of the privilege are 

reviewed de novo. Id. So is the district court’s choice of the 

applicable legal standard. Fjelstad v. Am. Honda Motor Co.,

762 F.2d 1334, 1337 (9th Cir. 1985). We review the district 

court’s factual findings for clear error. Richey, 632 F.3d at

563.
6 IN RE GRAND JURY

ANALYSIS

I. District Courts in Our Circuit Have Applied Both the 

“Primary Purpose” and “Because Of” Tests for 

Attorney-Client Privilege Claims for Dual-Purpose 

Communications.

“The attorney-client privilege protects confidential 

communications between attorneys and clients, which are 

made for the purpose of giving legal advice.” United States 

v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). 

Generally, communications related to an attorney’s 

preparation of tax returns are not covered by attorney-client 

privilege. Olender v. United States, 210 F.2d 795, 806 (9th 

Cir. 1954). So, for example, “a client may communicate the 

figures from his W-2 Form to an attorney while litigation is 

in progress, but this information certainly is not privileged.” 

United States v. Abrahams, 905 F.2d 1276, 1283–84 (9th 

Cir. 1990), overruled on other grounds by United States v. 

Jose, 131 F.3d 1325 (9th Cir. 1997). On the other hand, if a 

client seeks a lawyer’s legal advice to figure out what to 

claim on a tax return, then that advice may be privileged. 

Abrahams, 905 F.2d at 1284.

But some communications might have more than one 

purpose, especially “in the tax law context, where an 

attorney’s advice may integrally involve both legal and nonlegal analyses.” Sanmina, 968 F.3d at 1118. Sanmina, for 

example, involved communications about the propriety of a 

particular tax deduction, which could have both a non-legal 

purpose (tax compliance considerations) as well as 

potentially a legal purpose (seeking advice on what to do if 

the IRS challenged the deduction). Id. at 1117–18.

When dual-purpose communications are involved, there 

are two potential tests that courts have adopted: the “primary 
IN RE GRAND JURY 7

purpose” test and the “because of” test. 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. See In re County of Erie, 

473 F.3d 413, 420 (2d Cir. 2007) (“We consider whether the 

predominant purpose of the communication is to render or 

solicit legal advice.”). The natural implication of this 

inquiry is that a dual-purpose communication can only have 

a single “primary” purpose.

On the other hand, the “because of” test—which 

typically applies in the work-product context—“does not 

consider whether litigation was a primary or secondary 

motive behind the creation of a document.” In re Grand Jury 

Subpoena (Mark Torf/Torf Env’t Mgmt.), 357 F.3d 900, 908 

(9th Cir. 2004). It instead “considers the totality of the 

circumstances and affords protection when it can fairly be 

said that the document was created because of anticipated 

litigation, and would not have been created in substantially 

similar form but for the prospect of that litigation.” Id. 

(cleaned up). It is a broader test than the “primary purpose” 

test because it looks only at causal connection, and not a 

“primary” reason. See Visa U.S.A., Inc. v. First Data Corp., 

No. C-02-1786JSW(EMC), 2004 WL 1878209, at *4 (N.D. 

Cal. Aug. 23, 2004). In the attorney-client privilege context, 

the “because of” test might thus ask whether a dual-purpose 

communication was made “because of” the need to give or 

receive legal advice.

As the Sanmina court recently noted, the Ninth Circuit 

has not explicitly adopted either the “primary purpose” test 

or the “because of” test in determining whether dual-purpose 

communications are entitled to attorney-client privilege. 
8 IN RE GRAND JURY

Sanmina, 968 F.3d at 1118.2 And Sanmina itself declined to 

resolve this issue because the district court there had made a 

factual finding that the communications were not dualpurpose. Id. at 1119. Without guidance from our court, 

district courts in this circuit have split, applying both tests 

for attorney-client privilege claims. Id. at 1118 n.5 

(summarizing district court cases).

II. The Primary-Purpose Test Applies to Dual-Purpose 

Communications in the Attorney-Client Privilege 

Context.

Because this case squarely involves dual-purpose 

communications, we now answer the question that Sanmina

left open. We hold that the primary-purpose test applies to 

attorney-client privilege claims for dual-purpose 

communications.

To start, the “interpretation of the privilege’s scope is 

guided by ‘the principles of the common law . . . as 

interpreted by the courts . . . in the light of reason and 

experience.’” Swidler & Berlin v. United States, 524 U.S. 

399, 403 (1998) (quoting Fed. R. Evid. 501). At common 

law, the attorney-client privilege extends only to 

communications made “for the purpose of facilitating the 

rendition of professional legal services.” See United States 

2 The government suggests that dual-purpose communications in the 

tax advice context can never be privileged, but we reject that argument. 

The case law, at least in the Ninth Circuit, does not go so far. See 

Abrahams, 905 F.2d at 1284 (holding that attorney-client privilege might 

apply to legal advice about what to claim on a tax return, even if it does 

not apply to the numbers themselves). But see United States v. 

Frederick, 182 F.3d 496, 501 (7th Cir. 1999) (“Put differently, a dualpurpose document—a document prepared for use in preparing tax returns 

and for use in litigation—is not privileged. . . .”).
IN RE GRAND JURY 9

v. Rowe, 96 F.3d 1294, 1296 (9th Cir. 1996) (citation 

omitted); Restatement (Third) of the Law Governing 

Lawyers § 68 (Am. L. Inst. 2000) (stating that 

communication must be “for the purpose of obtaining or 

providing legal assistance for the client” to qualify for 

protection under attorney-client privilege). Thus, the “client 

must consult the lawyer for the purpose of obtaining legal 

assistance and not predominantly for another purpose.” 

Restatement, supra, § 72 cmt. c; see Swidler & Berlin, 

524 U.S. at 406–07 (discussing scholarly commentary in 

describing the contours of privilege at common law). As the 

Supreme Court has recognized, the attorney-client privilege 

“protects only those disclosures necessary to obtain 

informed legal advice which might not have been made 

absent the privilege.” See Fisher v. United States, 425 U.S. 

391, 403 (1976) (citation omitted). Thus, the scope of the 

attorney-client privilege is defined by the purpose of the 

communication consistent with the common law. See 

Swidler & Berlin, 524 U.S. at 410–11; Fed. R. Evid. 501.

Appellants assert, however, that we should instead 

borrow the test from the work-product doctrine when a 

communication has a dual purpose. In Appellants’ view, the 

attorney-client privilege should apply “when it can be fairly 

said that the document was created because of anticipated 

litigation and would not have been created in substantially 

similar form but for the prospect of that litigation.” See In 

re Grand Jury Subpoena (Mark Torf/Torf Env’t Mgmt.), 

357 F.3d 900, 908 (9th Cir. 2004) (describing when workproduct doctrine applies). Appellants thus ask us to depart 

from the holdings of most courts and adopt a new test for 

attorney-client privilege—at least in the context of dualpurpose communications. But, as in Swidler & Berlin, 

Appellants offer no persuasive reason to abandon the 

common-law rule, 524 U.S. at 410–11, which focuses on the 
10 IN RE GRAND JURY

purpose of the communication, not its relation to anticipated 

litigation. While the dual-purpose nature of Law Firm’s 

representation can complicate the analysis of whether the 

communication was made to obtain legal advice, we see no 

reason to tinker with the privilege’s scope and deviate from 

its common-law form to accommodate that concern.

While the attorney-client privilege and work-product

doctrine are typically mentioned together, attorney-client 

privilege and the work-product protection doctrine are 

animated by different policy goals. It thus makes sense to 

have different tests for the two. See id. at 404–05 (discussing 

policy rationale behind common-law scope of privilege in 

declining to adjust privilege’s scope).

In the work-product context, the concern is “to preserve 

a zone of privacy in which a lawyer can prepare and develop 

legal theories and strategy with an eye toward litigation, free 

from unnecessary intrusion by his adversaries.” United 

States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) 

(cleaned up). In short, the work-product doctrine upholds 

the fairness of the adversarial process by allowing litigators 

to creatively develop legal theories and strategies—without 

their adversaries invoking the discovery process to pry into 

the litigators’ minds and free-ride off them. See, e.g., Allen 

v. Chi. Transit Auth., 198 F.R.D. 495, 500 (N.D. Ill. 2001) 

(explaining that the intent of the work-product doctrine “is 

to protect the adversarial process by providing an 

environment of privacy” and insure “that the litigator’s 

opponent is unable to ride on the litigator’s wits”). Given 

this goal, it makes sense to have a broader “because of” test 

that shields lawyers’ litigation strategies from their 

adversaries.

In contrast, the attorney-client privilege encourages “full 

and frank communication between attorneys and their clients 
IN RE GRAND JURY 11

and thereby promote broader public interests in the 

observance of law and administration of justice.” Upjohn 

Co. v. United States, 449 U.S. 383, 389 (1981). Unlike the 

work-product doctrine, the privilege is not necessarily tied 

to any adversarial process, and it is not so much concerned 

with the fairness of litigation as it is with providing a 

sanctuary for candid communication about any legal matter, 

not just impending litigation. Applying a broader “because 

of” test to attorney-client privilege might harm our 

adversarial system if parties try to withhold key documents 

as privileged by claiming that they were created “because 

of” litigation concerns. Indeed, it would create perverse 

incentives for companies to add layers of lawyers to every 

business decision in hopes of insulating themselves from 

scrutiny in any future litigation. Because of these different 

aims, it makes sense to apply different tests for the attorneyclient privilege and the work-product doctrine. See 

Sanmina, 968 F.3d at 1120 (“[W]ork-product protection is 

not as easily waived as the attorney-client privilege based on 

the distinct purposes of the two privileges.” (cleaned up)).

Further, Appellants only point to two district court cases 

to support their position, but most, if not all, of our sister 

circuits that have addressed this issue have opted for some 

version of the “primary purpose” test instead of the “because 

of” test.3

 See Swidler & Berlin, 524 U.S. at 404 (rejecting 

3 See County of Erie, 473 F.3d at 420 (“We consider whether the 

predominant purpose of the communication is to render or solicit legal 

advice.”); United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) 

(requiring communication to be made “for the primary purpose of 

securing either a legal opinion or legal services, or assistance in some 

legal proceeding” (cleaned up)); Alomari v. Ohio Dep’t of Pub. Safety, 

626 F. App’x 558, 572–73 (6th Cir. 2015) (applying primary purpose 

test); In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 

2014).
12 IN RE GRAND JURY

invitation to change scope of privilege from its common law 

form after noting that majority view tracked common law). 

The great weight of the authority goes against Appellants’ 

position, which counsels against adopting it.

In sum, we reject Appellants’ invitation to extend the 

“because of” test to the attorney-client privilege context, and

hold that the “primary purpose” test applies to dual-purpose 

communications.

III. We Leave Open Whether the “A Primary 

Purpose Test” Should Apply.

Even if the “primary purpose test” applies here, 

Appellants argue that we should adopt “a primary purpose” 

as the test instead of “the primary purpose,” relying on the 

D.C. Circuit’s decision in In re Kellogg Brown & Root, Inc., 

756 F.3d 754 (D.C. Cir. 2014). The D.C. Circuit articulated 

its version of the primary-purpose test: “Was obtaining or 

providing legal advice a primary purpose of the 

communication, meaning one of the significant purposes of 

the communication?” Id. at 760. As Kellogg explained, 

“trying to find the one primary purpose for a communication 

motivated by two sometimes overlapping purposes (one 

legal and one business, for example) can be an inherently 

impossible task” because, often, it is “not useful or even 

feasible to try to determine whether the purpose was A or B 

when the purpose was A and B.” Id. at 759.

In the eyes of the Kellogg court, “the primary purpose 

test, sensibly and properly applied, cannot and does not draw 

a rigid distinction between a legal purpose on the one hand 

and a business purpose on the other.” Id. Even though it 

theoretically sounds easy to isolate “the primary or 

predominant” purpose of a communication, the exercise can 

quickly become messy in practice. That was the case in 
IN RE GRAND JURY 13

Kellogg in which the company conducted an internal 

investigation for both legal (e.g., to obtain legal advice) and

business reasons (e.g., to comply with regulatory 

requirements and corporate policy). A test that focuses on a 

primary purpose instead of the primary purpose would save 

courts the trouble of having to identify a predominate 

purpose among two (or more) potentially equal purposes.

We see the merits of the reasoning in Kellogg. But we 

see no need to adopt that reasoning in this case. None of our 

other sister circuits have openly embraced Kellogg yet.4 We 

also recognize that Kellogg dealt with the very specific 

context of corporate internal investigations, and its reasoning 

does not apply with equal force in the tax context.5 Nor are 

4 That said, some district courts have adopted Kellogg’s “significant 

purpose” analysis. See In re Gen. Motors LLC Ignition Switch Litig., 80 

F. Supp. 3d 521, 530 (S.D.N.Y. 2015) (“To be sure, the D.C. Circuit’s 

decision in Kellogg Brown & Root is not binding on this Court. 

Nevertheless, its analysis of the ‘primary purpose’ test as applied to 

internal investigations in the corporate setting is consistent with the 

Second Circuit’s analysis in County of Erie . . . .”); In re Smith & 

Nephew Birmingham Hip Resurfacing Hip Implant Prods. Liab. Litig., 

No. 1:17-md-2775, 2019 WL 2330863, at *2 (D. Md. May 31, 2019); 

Edwards v. Scripps Media, Inc., No. 18-10735, 2019 WL 2448654, at 

*1–2 (E.D. Mich. June 10, 2019).

5 We are aware, for example, that normal tax advice—even coming 

from lawyers—is generally not privileged, and courts should be careful 

to not accidentally create an accountant’s privilege where none is 

supposed to exist. See Frederick, 182 F.3d at 500 (“There is no common 

law accountant’s or tax preparer’s privilege, and a taxpayer must not be 

allowed, by hiring a lawyer to do the work that an accountant, or other 

tax preparer, or the taxpayer himself or herself, normally would do, to 

obtain greater protection from government investigators than a taxpayer 

who did not use a lawyer as his tax preparer would be entitled to.” 

(cleaned up)). Thus, it is not clear whether a more protective version of 

the primary-purpose test is appropriate in this context.
14 IN RE GRAND JURY

we persuaded that the facts here require us to reach the 

Kellogg question. Moreover, the universe of documents in 

which the Kellogg test would make a difference is limited. 

The Kellogg test would only change the outcome of a 

privilege analysis in truly close cases, like where the legal 

purpose is just as significant as a non-legal purpose. 

Because the district court did not clearly err in finding that 

the predominate purpose of the disputed communications 

was not to obtain legal advice, they do not fall within the 

narrow universe where the Kellogg test would change the 

outcome of the privilege analysis. See Sanmina, 968 F.3d at 

1119 (affirming the district court’s finding about the purpose 

of a communication because it was not clearly erroneous). 

We thus see no need to adopt or apply the Kellogg 

formulation of the primary-purpose test here.

CONCLUSION

The district court’s orders holding Company and Law 

Firm in contempt are AFFIRMED.

6

6 The motion for immediate issuance of the mandate [Dkt. 60] is 

DENIED.