how to extend attorney client privilege to an independent third party

Privilege may be waived by voluntary disclosure to a third party, in certain circumstances. Under federal law, the unauthorized disclosure of privileged attorney-client communications will not generally result in a waiver of the attorney-client privilege.

Full Answer

Can a third party consultant claim the attorney-client privilege?

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 t...

Should the attorney-client privilege be expanded?

Given that the attorney-client privilege “should not be expanded without considerable caution,” and given Corning’s failure to satisfy its burden of demonstrating the existence of a valid privilege, the court granted plaintiff’s motion to compel and ordered Corning to turn over the documents in question.

How to maintain the attorney-client privilege even with a third-party presence?

Maintaining the Attorney-Client Privilege Even with a Third-Party Presence 1 The Use of Third-Party Agents and the Functional Equivalent Doctrine. ... 2 Third Parties Who Assist in Understanding and Interpreting Complex Principles. ... 3 The Functional Equivalent Doctrine. ... 4 Joint Venture and Co-Promotion Agreements. ... 5 Conclusion. ...

Can a third party intervene in a lawyer-client conversation?

The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.

What happens if privileged information is voluntarily disclosed to a third party?

The privilege shields from discovery advice given by the attorney to the client as well as communications from the client to the attorney. Voluntary disclosure of privileged communications to a third party results in waiver of the attorney-client privilege unless an exception applies.

Does attorney-client privilege extend to investors?

California case law is unequivocal. The client of a lawyer serving as legal counsel to a corporation or other entity is that entity itself and the attorney-client relationship does not extend to the members or shareholders of the entity.

Which of the following may not be protected under the attorney-client privilege?

Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime.

What are two prerequisites for a confidential attorney-client communication?

For attorney-client privilege to apply to a communication, the general rules require that: (1) the communication be between a client and an attorney (i.e., an individual having a law degree and bar membership, and acting as an attorney for the client) or an agent of an attorney (e.g., a tax accountant, a patent agent, ...

Do shareholders break privilege?

Judge Denise Cote held that a company's attorney-client privilege does not automatically extend to its shareholder, such that disclosing company counsel's advice to the shareholder can break the privilege.

Are communications with investors privileged?

A claim-holder's communications with its investors, or potential investors, introduces the risk of privilege waiver and the potential exposure of sensitive information to an adverse party in later litigation.

Are emails subject to attorney-client privilege?

Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.

Can I forward a privileged and confidential email?

An e-mail from your attorney is privileged, but once you forward it to anyone not covered by the privilege, the e-mail is no longer a confidential communication. Inadvertent waiver is particularly a risk with e-mail software containing an auto-text feature that automatically completes e-mail addresses.

What happens if a lawyer break attorney-client privilege?

Speaking to a lawyer in a public place with other people is another example where the information may get out without consequences to the attorney. Otherwise, a lawyer who breaches the attorney-client privilege could face serious consequences for an ethical violation, such as disbarment and criminal charges.

How can we preserve legal privilege?

Legal advice privilegeThere must be a lawyer present. ... There must be an 'authorized' client present. ... There must be a communication. ... Not all preparatory material is privileged. ... The communication must be 'legal advice' ... There need not be a lawyer present. ... Litigation must be afoot or in contemplation.More items...

Are communications between attorneys privileged?

The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. Under the rule, attorneys may not divulge their clients' secrets, nor may others force them to.

Are meeting minutes privileged?

Instead, board minutes, or portions of board minutes, can be privileged under US law when they capture legal advice rendered either by in-house lawyers or external lawyers or discussions of ongoing litigation. Board participants should be aware of the potential for a waiver of the privilege.

Why was the attorney-client privilege waived in Missouri?

On the other hand, a Missouri court found that a defendant charged with second degree murder had waived the attorney-client privilege because of a family member's presence at a client-lawyer meeting. During a prior divorce case, the defendant brought her daughter to a meeting with her family law attorney. Because the daughter wasn't essential in conveying information to the lawyer and wasn't reasonably necessary to protect her mother's interests, her presence at the meeting destroyed the privilege. So, the family law attorney's testimony about the meeting—given at the murder trial—was admissible. ( State v. Shire, 850 S.W.2d 923 (Mo. Ct. App. 1993).)

Why did the second degree murderer waive the attorney-client privilege?

On the other hand, a Missouri court found that a defendant charged with second degree murder had waived the attorney-client privilege because of a family member's presence at a client-lawyer meeting. During a prior divorce case, the defendant brought her daughter to a meeting with her family law attorney.

What happens if you allow a third party to be present for a lawyer-client conversation?

The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.

What does the court say about the presence of the parents?

The court said that the presence of the parents, who had "an understandable parental interest and advisory role in their minor's legal affairs," didn't defeat the attorney-client privilege. That meant that a defendant couldn't question the witness about his conversations with his lawyer. ( State v.

What is a third person in a case?

Put more specifically, the third person must be present while fulfilling a role that furthers the defendant's legal representation. The person might be part of the lawyer's staff, an outside party with relevant expertise (for instance, an investigator), an interpreter, or even a relative who acts in an advisory role.

Why did the daughter choose the law firm for her mother?

The daughter chose the law firm for her mother, transported her to the meetings, and put her at ease so she could communicate with her lawyers. The daughter also had relevant information and could aid her mother's memory.

What does "highly useful" mean in court?

Courts use words like "essential," "necessary," and "highly useful" to describe roles that jibe with the attorney-client privilege. Whether the role fits the bill is a determination that depends on the circumstances.

What is the Ambac decision?

The Ambac decision and the recent functional equivalent cases are the tip of the spear in the effort to assert and protect your company or client's privileged communications. As market pressures continue to force companies to find efficiencies through outsourcing typical in-house functions or engaging in joint ventures to promote or develop a product, counsel should be careful to properly structure the communication channels among vendors, third parties and joint venture partners so as not to waive any privilege. Taking a proactive approach to understanding the privilege rules of the relevant jurisdiction – which will most likely be the rules of the state in which the communications were made – before sharing privileged communications with a vendor or joint venture partner will save a great deal of stress in the future. Likewise, litigation counsel must be diligent in asserting these privileges during discovery, in order to educate opposing counsel and the courts on the recent shifts in the law.

What is functional equivalent doctrine?

The functional equivalent doctrine is different from privilege based on the interpreter concept, as discussed above. The Southern District of New York has explained that the functional equivalent doctrine will apply where the third party was retained by a company and functions like an employee; whereas in the situation where a third party is hired to assist an attorney to represent a company and there is no suggestion that the third party performed any business functions for the client or entered into communications with counsel for that purpose, the analysis will focus on the third party acting as an interpreter for the attorney. In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 220 n4 (S.D.N.Y. 2001).

What is the purpose of asserting and maintaining the privilege with third parties?

As with any assertion of privilege, it is important to understand that properly asserting and maintaining the privilege with third parties has two components: 1) ensuring that communications involving third parties and company attorneys (whether company counsel or outside counsel) are covered by the attorney-client and/or work-product privilege; and 2) maintaining that privilege by avoiding any claim of waiver.

What is black letter law?

Traditional black-letter law teaches that the presence of an outside, or third, party on an otherwise privileged communication will waive privilege. However, courts have found two exceptions to this rule: 1) where the third party is participating to assist an attorney in understanding and interpreting complex principles, ...

Is there a law that says attorney client privilege is not tied to litigation?

Most recently, in Ambac Assurance Corp., v. Countrywide Home Loans, Inc., 2014 WL 6803006, No. 651612/10 (1st Dep't 2014), a New York appellate court, guided by recent Federal decisions and Delaware law, abandoned the litigation requirement altogether. Specifically, the court noted that " [t]he 'attorney client privilege is not tied to the contemplation of litigation,' because 'advice is often sought, and rendered, precisely to avoid litigation, or facilitate compliance with the law, or simply to guide a client's course of conduct.'" Further, the court held that encouraging parties with common legal interests to seek legal advice "'to meet legal requirements and to plan their conduct accordingly' ... 'serves the public interest by advancing compliance with the law, facilitating the administration of justice and averting litigation.'"

Why do companies turn to joint ventures?

In a similar vein, companies are turning more and more to joint ventures as they attempt to exploit synergies with other companies – sometimes even competitors – to accomplish tasks that companies traditionally completed on their own.

When is common interest invoked?

The common-interest privilege is typically invoked when privileged communications are exchanged among parties involved in such joint ventures. It is important to understand the basic elements of the common-interest privilege so that counsel can appropriately structure communication channels to protect the privilege.

Why was the wage and hour report privileged?

Defendant resisted production and argued that the report was privileged, because the third-party consultant prepared the report in order to help outside counsel assess a legal issue central to the litigation: whether employees in the “Apprentice “ category were properly classified. Even though the report was addressed to outside counsel, however, this was not enough to prevent disclosure. In the court’s view, there was no other evidence that the report was prepared to actually assist outside counsel in providing legal advice. Instead, the court concluded that the consultant had been hired merely to provide “factual research and to assist [defendant] in making a business decision.” Id. at *5.

Why did the privilege not apply to the client after the report was received?

Therefore, since no legal advice was given to the client by the attorney after the report was received, the privilege did not apply because the report was not prepared for the purpose of “obtaining legal advice from the lawyer.”. Id.

What is the third important document?

Third, and perhaps most important, create contemporaneous documentation of both the legal need for the consultant and the advice provided

Why do businesses use third party consultants?

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.

Why can't an accountant testify to a grand jury?

The Second Circuit held that the accountant could refuse to testify to a grand jury on privilege grounds because his services were “necessary, or at least highly useful for the effective consultation between the client and the lawyer.”. Id. at 922. Notably, however, the scope of the privilege was limited:

Why was HR Consultant's Report not privileged?

HR Consultant’s Report Not Privileged Because It Was Not Used to Provide Legal Advice. At issue in the first decision, Scott v.

What is vital to the privilege?

What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service…or the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.

What is the Ambac decision?

The Ambac decision and the recent functional equivalent cases are the tip of the spear in the effort to assert and protect your company or client's privileged communications. As market pressures continue to force companies to find efficiencies through outsourcing typical in-house functions or engaging in joint ventures to promote or develop a product, counsel should be careful to properly structure the communication channels among vendors, third parties and joint venture partners so as not to waive any privilege. Taking a proactive approach to understanding the privilege rules of the relevant jurisdiction — which will most likely be the rules of the state in which the communications were made — before sharing privileged communications with a vendor or joint venture partner will save a great deal of stress in the future. Likewise, litigation counsel must be diligent in asserting these privileges during discovery, in order to educate opposing counsel and the courts on the recent shifts in the law.

What is the common interest privilege?

The common-interest privilege doctrine is another exception to the black-letter rule that the presence of a third party waives the attorney-client or work-product privilege. The common-interest privilege is typically invoked when privileged communications are exchanged among parties involved in such joint ventures. It is important to understand the basic elements of the common-interest privilege so that counsel can appropriately structure communication channels to protect the privilege.

What is the purpose of asserting and maintaining the privilege with third parties?

As with any assertion of privilege, it is important to understand that properly asserting and maintaining the privilege with third parties has two components: 1) ensuring that communications involving third parties and company attorneys (whether company counsel or outside counsel) are covered by the attorney-client and/or work-product privilege; and 2) maintaining that privilege by avoiding any claim of waiver.

Do third parties break privilege?

Courts have long recognized that few lawyers can practice without the assistance of messengers, clerks and secretaries who are not themselves attorneys, and thus these third parties will not break privilege. Use of these quasi-legal third parties does not significantly differ from an attorney's use of a language interpreter to translate documents. Courts have made the jump from the need to interpret foreign languages to the need to interpret concepts that may be just as foreign to many lawyers, such as complex financial terms or accounting concepts. See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). Applying a mix of agency concepts and the interpretive concept, courts have routinely held that third parties who are assisting an attorney in providing adequate legal advice to a client do not break privilege. For example, in Stafford Trading, Inc. v. Lovely, No. 05-C-4868, 2007 WL 611252 (N.D. Ill. Feb. 22, 2007), the court recognized that, "in today's market place, attorneys need to be able to have confidential communications with investment bankers to render adequate legal advice."

Is privileged communications legal?

The modern business landscape is replete with examples of privileged legal communications occurring outside traditional corporate silos. For years, it has been appreciated by litigants (and courts) that bankers, experts and consultants could sufficiently implicate legal issues and strategies and, as a result, some communications with them may be protected under the attorney-client privilege. More recently, faced with pressure to increase efficiency, companies have increased their dependence on outside entities to complete tasks that were once reserved for in-house employees.

Why is privilege important in business?

Even in business transactions, it is critical to maintain the privilege as unseen conflicts may result in litigation down the road where attorney-client communications become of interest to an opponent .

How to maintain privilege of attorney?

To ensure privilege is maintained, the attorney should try to keep the roles from overlapping by offering legal advice and business advice separately when possible, be clear when legal advice is being rendered, and make sure the client understands that simply forwarding confidential information to the attorney does not make it privileged. If the client needs a contract to be reviewed for business concerns (e.g., financial analysis) as well as legal implications, advise the client to send separate e-mails to the finance team and the legal team rather than sending a general request for review to everyone in a single e-mail. The more explicit the request and rendering of legal advice, the easier it will be to assert the privilege.

What is privilege in a lawyer?

While both communications from client to attorney and from attorney to client are protected, the privilege protects only the fact that information was communicated and does not preclude disclosure of the underlying facts conveyed in those communications.

Why is it important to have an attorney-client privilege?

It encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations. Further, being fully informed by the client enables the attorney to provide the best legal advice .

Why is a draft not confidential?

The theory is that because the client ultimately intended to publish some version of the content in the draft, the client could not have intended it to be confidential. Alternatively, denial of the privilege as to drafts may be based on the “subject matter” waiver.

Why is communications privileged?

Because the privilege is contrary to the judicial goal of bringing relevant evidence to light, it is construed narrowly and protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.

What was the purpose of the Visa vs First Data case?

First Data Corp., attorneys for Visa were involved in reviewing and editing an analysis of the risks and concerns of entering a new private arrangement for transactions , which was transmitted to the board to assist in its decision whether to agree to the arrangement. Although attorneys gave input on the draft materials, the court found that the documents were initially created by Visa’s consultants because of business purposes to aid Visa in making a business decision as to the arrangements, and the analysis would have been undertaken even if no attorneys were involved. 2004 WL 1878209 (N.D. Cal. Aug. 23, 2004). Similarly, in Craig v. Rite Aid Corp., after noting that “courts have eschewed broad claims of privilege premised upon the involvement of in-house counsel in multi-participant corporate restructuring processes, in favor of a far more narrowly tailored and fact specific analysis of privilege claims,” the court held documents seeking feedback from in-house counsel and senior management on a draft proposal relating to business restructuring not privileged as no clear legal advice was sought. 2012 WL 426275 (M.D. Pa. Feb. 9, 2012).

How is attorney client privilege waived?

Attorney-client privilege is waived by disclosing the substance of the communication to a third party. Waiver can be voluntary or involuntary (accidental).

What is privileged attorney?

What is privileged? The attorney-client privilege protects: A communication. Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence.

What is the role of new management in a pre-existing business entity?

If new management is attempting to run the pre-existing business entity and manage its affairs, new management stands in the shoes of prior management and should control the attorney-client privilege with respect to the company’s operations.

What is audit committee?

When an investigation is conducted by an audit committee or special committee, the committee is a client separate and apart from the company for the purposes of the attorney-client privilege. Any investigative report shared with the company board or others at the company is potentially discoverable.

What are some examples of legal functions?

Examples of legal functions: Advising company on existing law. Analyzing conduct for conformity with law or judgments regarding law. Advising on imminent litigation.

What does "sharing" mean in legal?

Sharing (in writing or orally) the substance of the lawyer’s advice.

When discussing legal matters, should meeting minutes indicate clearly that?

In board meetings, conference calls and other meetings: When discussing legal matters, Board meeting minutes should indicate clearly that: In-house counsel attended in his/her role as legal advisor. Discussions were for the purpose of providing legal advice. Discussions were confidential and intended to be privileged.

Why is Benjamin not an employee?

The Court rejected Frank’s argument that Benjamin was not the functional equivalent of an employee because, as a consultant, he was likely to possess information that no one else at the company would be privy to. Id. Justice Lebovits noted that under those circumstances, the consultant would be “more likely to be integrated within the corporation’s structure and acting on behalf of the corporation rather than as an ‘outsider.’” Id. (citation omitted).

What did Frank request from Morgans?

Frank requested a judicial determination as to the validity of Morgan s’ assertion of the attorney-client privilege over the disputed conversations involving Benjamin. Morgans did not object to Frank’s request for a privilege determination; it merely argued that its counsel’s assertions of privilege were proper.

What is attorney-client privilege?

“The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship .” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623 (2016). The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991)). “It exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment.” Matter of Priest v. Hennessy, 51 N.Y.2d 62, 67-68 (1980).

Why are communications not privileged from disclosure?

Where the communications are made in the presence of third parties, whose presence is known to the client, the communications are not privileged from disclosure because they are no longer deemed to be confidential. Ambac, 27 N.Y.3d at 624 (citations omitted).

Is Benjamin a Morgans employee?

Justice Lebovits concluded that Benjamin qualified as the functional equivalent of a Morgans employee. Slip Op. at *2. The Court noted that the overlap between Benjamin’s duties and responsibilities as an employee and as a consultant of Morgans were material and supportive of its conclusion.

Was Benjamin a corporate consultant?

Against these facts, the Court found that, even though Benjamin was formally “serving as a corporate consultant rather than an employee, in practice he [was] performing ‘the functions and duties of [a] full-time employee’ while being ‘thoroughly integrated’ into the corporation’s structure and staff.” Id ., citing Asia Pulp & Paper, 232 F.R.D. at 113. Consequently, “to treat Benjamin as equivalent to an independent third party for privilege purposes, rather than as the functional equivalent of a corporate employee, would exalt form over substance,” said the Court. Id. The Court therefore held that the conversations between Benjamin and counsel for Morgans were “shielded by Morgans’ attorney-client privilege.” Id.

Does lack of confidentiality destroy the privilege?

As the Court of Appeals has held: “A lack of confidentiality and subsequent disclosure also destroy the privilege as a matter of fairness: ‘when [the privilege holder’s] conduct touches a certain point of disclosure, fairness requires that the privilege shall cease whether he intended that result or not.’”. Id.

What was the Upjohn case?

The Upjohn case arose out of the company’s internal investigation into “kickback” payments made by certain employees to foreign officials for the purpose of securing government business. The payments exposed the company to increased tax liability, yet the company brought the issue to the attention of the Security and Exchange Commission (“SEC”) as well as the Internal Revenue Service (“IRS”). In response, the IRS issued a subpoena seeking documents related to the internal investigation, including forms completed by company employees which had been submitted to its in-house counsel. Upjohn refused to produce the forms based on the attorney-client privilege, and the IRS sought to enforce the subpoena. The Court ruled that the communications at issue were protected because (1) they were made to in-house counsel at the direction of corporate superiors; (2) they concerned matters within the scope of the employees’ in-house duties; (3) the information was not available from upper-level management; and (4) the employees were aware that they were being questioned so that the corporation could receive legal advice. Upjohn at 394-396; 397-398 (recognizing strong public policy underlying attorney work product privilege). Pursuant to the “subject matter test” therefore, the attorney-client privilege is preserved if the criteria detailed in Upjohn is satisfied, which serves to protect communications between corporate attorneys and corporate employees during fact finding investigations. Upjohn is the landmark case on the attorney-client privilege in the corporate context. See Leslie Warton, Hazards for Attorney-Client Relationship, New York Law Journal, corporate counsel, November 18, 2002. State law typically governs these issues, however, and the more rigorous “control group test” is followed in several jurisdictions. See National Tank Co. v. Brotherton, 851 S.W. 2d 193 (Tex. 1993).

What is a privilege in a court?

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court , or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

What is Category 2 information?

If the purely factual information provides an “incomplete basis to conduct a thorough investigation, ” prosecutors may then request that the corporation provide attorney-client communications or non-factual attorney work product , which is identified as “Category II” information. Id. Prosecutors are cautioned that Category II information should only be sought in “rare circumstances.” Id. It should be noted that the McNulty Memorandum does not identify the “rare circumstances” in which this information may be sought. However, prosecutors are required to follow similar steps for authority to proceed with this avenue of investigation as required for Category I information, but, in addition, all requests for Category II information must be made in writing, setting forth the legitimate need for the information and identifying the scope of the waiver sought. Id. Such requests must also be maintained in the files of the Deputy Attorney General. Id. However, the memorandum notes that requests for Category II information do not include:

What is attorney client privilege?

In the corporate setting, the attorney-client privilege is unique in that the privilege attaches to the corporate entity, typically, and not to individual employees who communicate with the attorney. Similarly, the decision as to whether to waive the attorney-client privilege belongs to the corporation, not its employees.

What is the purpose of the control group test?

The control group test … frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys See king to render legal advice to the client corporation. The attorney’s advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy.

How did the government violate the Fifth and Sixth Amendments?

The Stein court held that the government violated the Fifth and Sixth Amendments by causing KPMG to cut off payment of legal fees and other defense costs for its employees upon indictment. Id. at 356. The court also found that government’s actions violated the substantive due process right to fairness in the criminal process. Id. at 360-62. The court specifically noted that the defendants were entitled to substantive due process protections since the government coerced a third party (KPMG) to withhold funds lawfully available to the each of the criminal defendants. Id. Thus, the court found at least one provision of the Thompson Memorandum unconstitutional, bringing into question other provisions, including the government’s demands for privilege waivers. Id. In criticizing the Thompson Memorandum, the court noted that it was designed to minimize the involvement of defense attorneys in corporate investigations, which is also a violation of the Sixth Amendment right to counsel. Id.

Where did the attorney-client privilege originate?

The attorney-client privilege found its origin in Elizabethan England, initially as a protection and consideration for the “oath and honor of the attorney,” instead of a protection afforded the client. See Radiant Burners v. American Gas Association, 320 F.2d 314, 318 (7th Cir. 1963) (citing 8 Wigmore, Evidence § 2990 (McNaughton Rev. 1961); Kelway v. Kelway, 21 Eng. Rep. 47 (Ch. 1580)). A century later, courts recognized that the client was entitled to similar protection, and by the 18th century the privilege became substantially recognized as that of the client. Id. In the early 1700’s, courts recognized that privileged communications were made, “…first, during any litigation; next, in contemplation of litigation; next, during a controversy but not yet looking to litigation; and lastly, in any consultation for legal advice, wholly irrespective of litigation or even of controversy.” Id. The parameters of the modern privilege were set out in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass 1950.)

The Use of Third-Party Agents and The Functional Equivalent Doctrine

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Third Parties Who Assist in Understanding and Interpreting Complex Principles

The Functional Equivalent Doctrine

Joint Venture and Co-Promotion Agreements

Conclusion

The Use of Third-Party Agents and The Functional Equivalentdoctrine

Third Parties Who Assist in Understanding and Interpretingcomplex Principles

The Functional Equivalent Doctrine

Joint Venture and Co-Promotion Agreements

• The common-interest privilege doctrine is another exception tothe black-letter rule that the presence of a third party waives theattorney-client or work-product privilege. The common-interestprivilege is typically invoked when privileged communications areexchanged among parties involved in such joint ventures. It isimportant to understand the basi...

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Conclusion