Attorney-Client Privilege and Government Litigation

A recent decision set out several principles governing attorney-client privilege in government litigation:

“The attorney-client privilege applies where a government attorney provides legal advice to a government client…. However, if a government attorney provides advice on political, strategic, or policy issues, that advice is not privileged…. If the advice sought is not legal advice, … then the privilege does not exist.”  National TPS Alliance v. U.S. Dept. of Homeland Security, 2026 WL 2790281 (N.D. Cal. Sep. 17, 2026)(emphasis added; cleaned up).

“In the government context, the Court of Appeals for the Second Circuit has likened distinguishing between legal advice and policy advice to the application of attorney-client privilege in the corporate context: business communications by in-house counsel are not protected under the privilege whereas communications ‘generated for the purpose of obtaining or providing legal assistance’ are protected.”  Id. (cleaned up).

“Where there are attorney-client communications that have a dual purpose – i.e., giving or receiving legal advice and giving or receiving nonlegal advice – a court applies the primary purpose test to determine whether the privilege obtains…. 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 nonlegal advice. The natural implication of this inquiry is that a dual-purpose communication can only have a single ‘primary’ purpose.”  Id. (cleaned up).

“Finally, draft documents can be, but are not always, privileged. For example, if a client (in confidence) sends a draft document to an attorney and asks the attorney to provide legal advice on the draft document, that specific copy of the draft – because it is part of the communication – is privileged. But that fact, in and of itself, does not immunize other copies of the same draft.”  Id.

“Also, if an attorney, in giving legal advice to a client, provides (in confidence) comments on a draft, or interlineates a draft, that specific legal advice is privileged.…  But once a client adopts an attorney’s edits or suggestions, the document that actually incorporates the attorney’s work – whether in draft or final version – does not remain privileged. Clearly, it could not lest even the final version of the document would be deemed privileged.”  Id.

“That being said, a draft not authored or received by an attorney may qualify for protection if it reveals, directly or indirectly, the substance of a confidential attorney-client communication….  In other words, if the specific, substantive legal advice provided by an attorney is discernible, then there is a basis to apply the attorney-client privilege.” Id. (citation omitted; cleaned up).

“A client’s request for legal advice is privileged, not just the attorney’s response, at least so long as the request is not just a general request for legal advice that does not reveal anything about the nature of the legal advice being sought.”  Id.

“As Plaintiffs point out, the fact that one specific attorney’s comments are privileged does not decisively establish that all comments from all attorneys are privileged.” Id. (cleaned up; emphasis in original).”

“Once the legal advice was given, that does not mean that everything that followed should also be privileged. DHS employees were discussing amongst themselves what to do next. Only those portions of the document which disclose specific and identifiable legal advice from counsel is protected.”  Id.

The court applied these principles to the documents at issue.