3 Critical Steps Every Corporate Executive Must Take Today After the Supreme Court's Privilege Ruling

1. Immediately Audit Your Communications for the “Primary Purpose” Test

In my 25 years as a federal prosecutor, I have seen the attorney-client privilege erode gradually, but the Supreme Court’s decision in In re Grand Jury (No. 21-1397) represents a seismic shift that demands your immediate attention. The Court held that for a communication to be privileged, its “primary purpose” must be to obtain or provide legal advice, not business advice—even when the two are inextricably intertwined. This overturns the more lenient “significant purpose” test that many circuits previously applied under Federal Rule of Evidence 501. In practice, this means that an email chain discussing both legal risks and market strategy will likely lose privilege entirely unless the legal component is demonstrably dominant. I recommend that every executive conduct a 30-day audit of all communications with in-house or outside counsel, flagging any document where business and legal advice are commingled. You must work with your general counsel to create a contemporaneous privilege log that explicitly states the primary legal purpose for each document, citing the new standard. Failure to do so invites a court to find waiver under Federal Rule of Evidence 502(b), which can cascade into disclosure of entire subject-matter categories.

2. Restructure Your Internal Communication Protocols Under Federal Rule of Evidence 502

The second critical step is to revise your company’s internal communication policies to align with the heightened evidentiary standards now required by the Supreme Court. Under Federal Rule of Evidence 502(a), any disclosure of privileged material to a third party—including internal business colleagues who lack a “need to know” for legal purposes—can waive privilege for the entire subject matter. The new ruling exacerbates this risk because courts will now scrutinize the distribution list of every email to determine whether business executives were included for non-legal reasons. I advise implementing a “privilege triage” system: create separate email threads labeled “PRIVILEGED – LEGAL ADVICE ONLY” for purely legal discussions, and keep business strategy in unprivileged channels. Every executive should receive mandatory training on 18 U.S.C. § 6002, which governs compelled testimony in federal investigations, because the loss of privilege can force you to choose between self-incrimination under the Fifth Amendment and cooperation with a grand jury. In my experience, the most common error is copying legal on routine business emails as a “CC” without any legal analysis, which the new test will treat as non-privileged business chatter. You must also update your document retention policy to preserve privilege logs for at least seven years, consistent with the statute of limitations under 18 U.S.C. § 3282 for most federal crimes.

3. Retain Separate Personal Counsel Immediately to Navigate Conflict-of-Interest Traps

This ruling creates an acute conflict-of-interest problem for corporate executives under ABA Model Rule 1.7, and I cannot overstate the urgency of retaining your own personal criminal defense attorney. When corporate counsel communicates with an executive about a matter that could implicate both the company and the individual—such as a securities filing under the Sarbanes-Oxley Act or an export control issue under the International Emergency Economic Powers Act—the “primary purpose” of that communication is now presumptively corporate, not personal. This means that if the government subpoenas those communications under 18 U.S.C. § 6003, the executive cannot claim personal privilege, because the primary legal advice was directed to the entity. I have seen prosecutors exploit this gap by using corporate privilege waivers to obtain incriminating statements made by executives who believed they were speaking confidentially with “their” lawyer. You must engage separate counsel who represents only you, not the corporation, and ensure that all personal legal communications occur outside corporate email systems and without corporate counsel copied. This is not a luxury; it is a necessity under the new regime, because the Supreme Court explicitly declined to create a “co-advice” exception in its ruling. Personal counsel can also advise you on the implications of the “crime-fraud exception” under Federal Rule of Evidence 502(d), which now applies more broadly when communications mix legal and illegal business advice.

4. Prepare for Parallel Proceedings by Mapping Your Privilege Exposure

The final step is to conduct a privilege exposure map that anticipates both civil and criminal proceedings, because the new ruling creates a dangerous asymmetry between these two arenas. Under the Supreme Court’s decision, a communication that loses privilege in a civil deposition under Federal Rule of Civil Procedure 30 can be used by prosecutors in a criminal grand jury proceeding under Federal Rule of Criminal Procedure 6(e). I have litigated cases where a seemingly minor privilege waiver in a shareholder lawsuit under the Securities Exchange Act of 1934 became the linchpin of a federal indictment for wire fraud under 18 U.S.C. § 1343. You must work with your defense team to identify every communication that could be deemed “mixed purpose” and assess whether the legal component truly dominates. Consider using a privilege review committee composed of outside counsel only, to avoid the perception that in-house lawyers are “judging their own work” under the new standard. I also recommend filing a protective order under Federal Rule of Evidence 502(d) in any active litigation, which can limit waiver to specific documents rather than entire subject matters. Remember, the government’s ability to pierce privilege under the “public corruption” exception in 18 U.S.C. § 201 remains intact, so any communication touching on government contracts or regulatory approvals is now at heightened risk. In my 25 years, I have never seen a single ruling that so fundamentally rewrites the rules of engagement for corporate executives, and those who act now will survive the scrutiny that inevitably follows.

Call to Action: If your company has not yet conducted a privilege audit under the new In re Grand Jury standard, you are already exposed to unnecessary risk in any federal investigation. I have spent over 25 years navigating the intersection of corporate privilege and criminal liability, and I can help your executive team implement these critical steps before the next grand jury subpoena arrives. Contact my office today to schedule a confidential privilege assessment—your personal liability and your company’s compliance posture depend on acting now.