In a normal business setting, the attorney-client privilege is not implicated when third-party consultants are involved in typical business functions, such as meetings, revising draft documents, and setting corporate policy. However, the privilege can be, and often is, at issue when privileged communications are shared with these consultants.
Full Answer
As long as other factors necessary to the attorney-client privilege are present, either the “translator” theory or the “functional equivalent” theory will entitle a party to claim the attorney-client privilege for communications between (a) the party’s counsel and the third-party consultants, or (b) the client and the third-party consultant in the lawyer’s presence, or (c) the …
21 hours ago · Attorney-client privilege does not apply if John Eastman and Donald Trump committed crimes John C. Eastman, image via Wikimedia Commons. John …
Jan 12, 2022 · In a normal business setting, the attorney-client privilege is not implicated when third-party consultants are involved in typical business functions, such as meetings, revising draft documents, and setting corporate policy. However, the privilege can be, and often is, at issue when privileged communications are shared with these consultants.
Mar 16, 2017 · By Steven D. Ginsburg. Piercing the attorney-client privilege may be one of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects confidential communications between the client and the lawyer made for the purpose of obtaining or providing legal assistance, to “encourage full and frank communication . . . and thereby …
by Charles Bieneman Communications between a company's attorneys and an independent contractor may be protected by the attorney-client privilege, so long as the communications are directed to the independent contractor functioning as an employee.Apr 11, 2012
When answered in the affirmative, the consultant is “in all relevant respects the functional equivalent of an employee” and communications between corporate counsel and the consultant may be covered under attorney-client privilege.May 11, 2020
In general, as long as the prospective client is seeking legal advice or representation and reasonably believes the communication will be confidential, the consultation is privileged. This is so even if the would-be client never pays or hires the attorney.
Thus, where a consultant has a close working relationship with a company and performs a similar role to that of an employee, confidential communications that are made for the purpose of obtaining or providing legal advice should be subject to the attorney-client privilege.
Emails are discoverable, unless they are subject to the Attorney Client or Work Product Privilege. It is important to note that forwarding a privileged email to a party outside of the attorney client relationship will likely result in the waiver of the privilege.Jul 9, 2018
Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.Apr 28, 2021
Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights.
The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle.
As a general rule, any communication between a lawyer and a client is confidential and subject to the attorney client privilege. The attorney cannot tell that information to anyone without the client's consent. Importantly, this privilege applies to the lawyer's prospective clients, as well as actual clients.Oct 26, 2017
BOTH COMMON AND FEDERAL LAW reject the idea of an accountant-client privilege like that which exists between attorneys and their clients. However, accountant-related communications still may be shielded from disclosure when an accountant acts as an agent for an attorney providing legal services.Mar 31, 1997
The court in In re Copper Market Antitrust Litigation held that a PR firm was the functional equivalent of an employee such that the privilege was not waived when counsel shared communications with the firm. In doing so, the court recognized that the PR firm was within the scope of privilege as defined by Upjohn Co. v.Apr 23, 2020
The attorney-client privilege prevents people from revealing confidential communications between defendants and their lawyers. (See The Attorney-Client Privilege.)
The seminal decision extending the attorney-client privilege to conversations with a nonlawyer was United States v. Kovel, 296 F.2d 918 (2d Cir. 19...
Judge Friendly’s decision in Kovel said nothing about communications with public relations agents. The first case to address that issue was a trade...
The following year, however, in In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2001) (Laura Taylor Swain, J.), the court recogn...
Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 2002 WL 31556383 (S.D.N.Y. Nov. 15, 2002) (Henry Pitman, Magistrate Judge) — a case I...
In In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, 265 F. Supp.2d 321 (S.D.N.Y....
In In re Currency Conversion Fee Antitrust Litigation, 2003 WL 22389169 (S.D.N.Y. 2003) (William Pauley, J.), a class action alleging a price-fixin...
Export-Import Bank of the U.S. v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103 (S.D.N.Y. 2005) (James C. Francis IV, magistrate Judge), was a suit b...
In the bankruptcy proceeding entitled In re Adelphia Communications Corporation, 2007 WL 601452 (Bankr. S.D.N.Y. 2007) (Cecelia Morris, Bankr. J.),...
Sieger v. Zak, 18 Misc.3d 1143(a) (Nassau County Supreme Ct. 2008) (Stephen Bucaria, J.) — one of two state court cases on the subject — was a suit...
In American Manufacturers Mutual Insurance Co. v. Payton Lane Nursing Home, Inc., 2008 WL 5231831 (E.D.N.Y 2008) (A. Kathleen Tomlinson, Magistrate...
The most recent case in the third-party consultant line is a state court case, Mt. McKinley Insurance Co. v. Corning Inc., 602454/2002 (N.Y. County Supreme Ct., Dec. 13, 2009) (Eileen Bransten, J.). That case asked whether a lawyer’s talks with an insurance broker to get advice and information to help a client were protected by the attorney-client privilege.
2003) (William Pauley, J.), a class action alleging a price-fixing conspiracy by Visa and Mastercard and their member banks with respect to currency conversion fees, plaintiffs moved to compel a bank (First USA) to produce documents that First USA had disclosed to employees of a third party, First Data Resources, Inc. (First Data), which provided “computing services, consulting services, and other support services to credit card issuers.” First USA, citing In re Copper Market Antitrust Litigation and other cases, claimed that the First Data Documents remained privileged because the First Data employees were the “functional equivalent” of First USA employees.
The first case to address that issue was a trademark infringement action, Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000) (Jed S. Rakoff, J.). In May 2000, in anticipation of filing a lawsuit on behalf of Calvin Klein, the law firm of Boies, Schiller & Flexner LLP (BSF) retained the public relations firm of Robinson Lerer & Montgomery (RLM) to act as a “consultant” to BSF for certain communications services related to BSF’s representation of Calvin Klein, Inc. (CKI). Defendants contended that BSF had retained RLM solely “to wage a press war against the defendant,” but plaintiffs said that they had retained RLM to help BSF “to understand the possible reaction of CKI’s constituencies to the matters that would arise in the litigation, to provide legal advice to CKI, and to assure that the media crisis that would ensue — including responses to requests by the media about the law suit and the overall dispute between the companies — would be handled responsibly…” The court denied Calvin KIein the protection of the attorney-client privilege, for at least three reasons.
The media, prosecutors, and law enforcement personnel in high profile cases often engage in activities that color public opinion, not only to the detriment of the subject’s general reputation but also, in extreme cases, to the detriment of his or her ability to obtain a fair trial.
Sieger v. Zak, 18 Misc.3d 1143 (a) (Nassau County Supreme Ct. 2008) (Stephen Bucaria, J.) — one of two state court cases on the subject — was a suit alleging breach of fiduciary duty by the majority shareholder and principal manager of PowerSystems International, Inc., which manufactured specialized trailers sold primarily to the military to service command posts and mobile hospitals. Plaintiffs were minority shareholders who had each invested $25,000 in 1995 to get the company started. By early 2004, the company was making more than $1.2 million a year in profits, and plaintiffs suggested to Zak that he sell the entire company in order to liquidate their investment. Zak then met with a business consultant named John Magee who offered to make recommendations to PowerSystems’ board of directors concerning the current and future value of the company. Magee and PowerSystems entered into a confidentiality agreement whereby Magee agreed to keep confidential pricing, customer and supplier lists, operating data, and other information obtained in the course of providing consulting services to the company. Magee also prepared an “engagement letter,” which formally outlined the services he intended to perform for PowerSystems. In the engagement letter, Magee undertook to develop a strategy and time line for “monetizing the shareholders’ investment” in PowerSystems.
Marvel Enterprises, Inc., 2002 WL 31556383 (S.D.N.Y. Nov. 15, 2002) (Henry Pitman, Magistrate Judge) — a case I unintentionally omitted from my 2003 article — originated as a copyright and licensing dispute over the “X-Men” characters. Fox withheld about 15 documents that Fox had shown to certain independent contractors. In opposition to a motion to compel, Fox argued that the independent contractors to whom disclosure was made were directly involved in the production of X-Men2 and that disclosure to them did not operate as a waiver of the privilege because “they functioned as employees and Fox’s economic decision to conduct its business through independent contractors as opposed to employees should not affect the scope of its privilege.”
Reed Smith – ByLisa Baird, Colleen Davies, Andrew Stillufsen – In our modern economy, businesses regularly use all manner of third-party consultants for many different reasons, including cost, efficiency, and expertise. Less regularly, communications between businesses and consultants are the subject of discovery motion practice in litigation. Two recent decisions out of the Southern District of New York demonstrate why businesses that use third-party consultants should proceed with caution to preserve claims of attorney-client privilege, and prevent the disclosure of what would otherwise be privileged communications.
Two Canadian law firms say they have filed a $578 million class-action lawsuit against the media companies behind Ashley Madison, following the massive hack that has exposed almost 40 million users on the adultery website.
The root of the problem lies with a basic tenet of the attorney-client privilege: communications between attorney and client are confidential, but once that communication is shared with a third party, the privilege is waived. In some cases, however, courts have found an exception to this normal waiver rule, depending upon the role ...
An attorney-client relationship generally doesn't form until the lawyer and client agree to it. But the attorney-client privilege protects some communications made before the prospective client hires the attorney, and even some where there's never any hire. (For all kinds of information about lawyer-client relationships, ...
So, it's a good idea to start any communication with an attorney who doesn't represent you by confirming with him or her that your communications will be privileged. Talk to a Lawyer.
v. Ovivo USA LLC, 3 a trademark case, held that disclosure of privileged communications to a general adviser waived the attorney-client privilege. Ovivo sought communications among Digital Mentor Inc., DMI’s counsel, and William Chastain, a third-party consultant.
Counsel should emphasize at the outset of each consultant engagement that all communications and documents generated in the engagement should be considered confidential and only shared with individuals within the company who have a need for the information — and never with a third party without approval of counsel.