The Application of the Attorney-Client Privilege to Interactions Among Clients, Attorneys, and Experts in the Age of Consultants: The Need for a More Precise, Fundamental Analysis
UC Davis Legal Studies Research Paper No. 215
40 Pages Posted: 27 Apr 2010
Date Written: April 26, 2010
Several recent high-profile cases such as the prosecution of Martha Stewart have focused attention on the question of whether and to what extent the attorney-client privilege applies to communications exchanged by clients, attorneys, and their consultants. The high-profile cases are merely the tip of the iceberg. This has been called the age of consultants. As many corporations downsize, they have outsourced functions previously performed in-house by employees on staff. These companies increasingly rely on external consultants. In particular, when the companies become involved in litigation, their counsel may have to turn to such a consultant.
In order to support this practice, several courts have extended the attorney-client privilege to interactions among clients, attorneys, and external consultants. The practice is certainly legitimate, and it is understandable that these courts would want to remove disincentives to the practice. However, the extension has drastic consequences. Unlike the work product protection, the legal privilege is absolute; the privilege cannot be surmounted by an opponent’s showing of case-specific need for the privileged information. Unlike the medical privileges, the legal privilege is not subject to a patient/litigant exception. Thus, if the attorney consults an expert who forms an unfavorable opinion, the client can invoke the privilege to suppress the opinion. Further, if the client has the financial resources, the client can monopolize the available expertise. If the expert forms a favorable opinion, the attorney calls the expert as a trial witness; but again, if the expert reaches an unfavorable conclusion, the attorney can “bury” the opinion.
While these consequences do not preclude the extension of the attorney-client privilege to interactions among clients, attorneys, and experts, the courts should think long and hard before deciding to extend the privilege that far. To date, though, most of the discussions of this topic in the literature suffer from two weaknesses. One is that the discussions tend to lump together all of the varying types of communication involved in these interactions. As this article explains, several very different types of communication occur in these interactions. The second is that the discussions often pose the wrong questions. For example, they address the general question of whether there is a need to protect communications between the expert and the attorney rather than the dispositive issue of whether the communication in question can realistically be characterized as either a communication from the client to the attorney or one flowing from the attorney to the client.
The purpose of this article is to present a more precise, fundamental analysis of interactions among clients, attorneys, and experts. For instance, the article points out that in the typical interaction, there are three distinct types of communication. The article differentiates among: (1) the initial communication in which the attorney engages the expert; (2) the intermediate communication in which the expert conveys his or her analysis to the attorney; and (3) the final step in which the attorney forms his or her advice and communicates that advice to the client. With respect to each different type of communication, the article reaches the fundamental question: In principle, should this be treated as a communication from client to attorney or one from attorney to client?
As a generalization, the article concludes that the absolute legal privilege should extend to these interactions in only two situations. One is the situation discussed in the Second Circuit’s 1961 decision in United States v. Kovel. In this limited situation, the expert serves as an interpreter or translator for the client. The client possesses private data such as information about his or her mental condition, the attorney needs an evaluation of the data to prepare for trial, but neither the client nor the attorney possesses the expertise to evaluate the data. Here the expert serves as an essential conduit for communication between client and attorney. The second is the situation governed by the United States Supreme Court’s 1981 decision in Upjohn Co. v. United States. In this setting a corporate employee possesses information needed by corporate counsel; and in communicating with counsel, the employee – no matter how low-ranking – is deemed to personify the entity. If the corporation has outsourced the function of compiling and maintaining that information to an external consultant, the consultant’s communications with counsel ought to be treated as a communication originating from the client to the attorney.
This article contends, though, that beyond these two situations, it is indefensible to extend the legal privilege to these interactions. It has been argued that the courts “need” to encourage these interactions. However, the necessity argument proves too much. While it may be necessary for counsel to obtain input from an expert consultant, it is even more necessary that the counsel interview the percipient lay witnesses to the underlying events; and no one would argue that necessity justifies applying the legal privilege to those interviews. It could also be argued that unless the legal privilege extends to communications with external consultants, there will be unfair discrimination against corporations that are too poor to keep expert consultants on the payroll.
The last section of this article demonstrates that that argument is badly flawed. In short, in these cases there is no justification for distorting the basic concepts of “client” and “attorney” at the heart of the legal privilege.
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