The Newtonian, Issue #31, Autumn 2022November 7, 2022
Leason Ellis Celebrates the HolidaysDecember 22, 2022
We are pleased to have supported the New York Intellectual Property Law Association (NYIPLA) in its filing last week of a merits stage amicus brief in the U.S. Supreme Court case In re Grand Jury, No. 21-1397. The issue before the Court is what test courts should apply to determine whether an attorney-client communication that has both legal and nonlegal aspects is protected by the attorney-client privilege. Different standards have been applied by the lower courts with inconsistent results. The NYIPLA argues adoption of the “significant-purpose” test, which allows clients to fully disclose all the relevant facts of their matter, and, in turn, improves the quality of advice that IP lawyers can give. The NYIPLA provided the Court with insight about how IP lawyers are invested in their clients’ business and routinely expected to advise on business and legal matters, and help clients foster innovation. The brief also demonstrates how adopting an unpredictable and under-protective test for the privilege, like the one used by the Ninth Circuit, would raise the costs of various IP matters and diminish the value of the advice that an IP lawyer provides Leason Ellis partner Robert Isackson, immediate Past-President of NYIPLA, was one of the authors of the brief, along with Heather Schneider of Willkie Farr & Gallagher LLP, Irena Royzman and Mark Russell of Kramer Levin Naftalis & Frankel LLP, Robert Rando of Greenspoon Marder, LLP, and Mark Chapman of Haugh Partners LLP.