The Corporate Attorney-Client Privilege: Third Rate Doctrine for Third Party Consultants
76 Pages Posted: 9 Apr 2009 Last revised: 9 Dec 2009
Date Written: April 7, 2009
Due to the increasingly complex legal landscape, lawyers often rely on information and guidance from non-lawyer consultants such as accountants, investment bankers, and public relations specialists to provide fully informed legal advice to their corporate clients. Currently, however, there is little agreement among federal courts on the appropriate standard to analyze the attorney-client privilege when communications involve third party consultants. Moreover, at the margins, third party attorney-client privilege doctrine is overly broad and overly narrow. The narrow interpretation shields third party communications in the rarest of situations, e.g., when the consultant is acting solely as an interpreter. The broadest interpretation protects communications whenever they help the lawyer provide legal advice - at the expense of the public's access to information. Thus, the doctrine protects communications even those in favor of a robust corporate attorney-client privilege would not approve and denies protection in the very contexts for which the doctrine was created.
This Article examines when communications with third party consultations should be protected. It is informed, in part, by some empirical research I conducted on attorneys' communications with external public relations consultants. It argues that exchanges between attorneys and third party consultants should be protected in certain circumstances. As a means to achieve that protection, this Article recommends the attorney-client privilege protect these exchanges when there is a strong nexus between the consultant's service and the legal advice provided to the client. It proposes that the proponent show that communication with the third party was necessary to provide legal advice or services. To guard against the use of attorneys as shields for non-privileged communications and to help the court determine that the primary purpose of the exchange was for legal (as opposed to business) advice, it proposes that courts also take into account: 1) whether the lawyers were not skilled in the area in which they sought expert assistance; 2) the way the communication was conducted or distributed; 3) contemporaneous documentary support e.g., a separate retainer agreement; and 4) the substance of the law involved. Unlike the narrowest standard, this multi-factored nexus test embraces the role third party consultation plays in the provision of legal advice to large corporations. Unlike the broadest standard, this test prevents the ease with which corporations can funnel communications with third party consultants unrelated to legal services through their attorneys for protection. Further, these recommendations simplify the current doctrine and make it slightly more predictable.
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By Robert Rosen