"A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury"

Stephen Gillers has this post at ScotusBlog. In part:

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.