What Client Agents Deserve Privilege Protection?

McGuireWoods LLP
Contact

Nearly every court considers client agents outside privilege protection unless those agents are necessary for facilitating privileged communications between clients and their lawyers. Some courts occasionally take a broader view – but without starting a trend.

In In re Riddell Concussion Reduction Litigation, the court assessed privilege protection for defendant's communications with "a public relations firm that consults with clients on communication strategies." Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *21 (D.N.J. Dec. 5, 2016). Most courts find such agents outside privilege protection, but the Riddell court held that "it is unquestionably the case that communications between and amongst Riddell and [the PR agency] for the purpose of securing legal advice are privileged." Id. at *14-15. A few weeks later, Valenzuela v. Union Pacific Railroad Co. held that a company's "right-of-way agent" deserved privilege protection under both Arizona and California law. No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640, at *20 (D. Ariz. Dec. 21, 2016). But between those two decisions, a New York court applied the majority rule – holding that the plaintiff's brother (who was also funding the plaintiff's litigation) was outside privilege protection, because the plaintiff "cannot show that [his brother/litigation funder] served to facilitate attorney-client communications or representation," or acted as an agent "whose services are necessary for the provision or receipt of legal services." Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *6-7 (N.Y. Sup. Ct. Dec. 9, 2016).

Many corporate executives mistakenly believe that they can share privileged communications with corporate agent/consultants without waiving the privilege. A handful of cases now and then provides a tempting sign that courts are becoming more forgiving, but the majority continues to find nearly all such agent/consultants outside privilege protection.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McGuireWoods LLP | Attorney Advertising

Written by:

McGuireWoods LLP
Contact
more
less

PUBLISH YOUR CONTENT ON JD SUPRA NOW

  • Increased visibility
  • Actionable analytics
  • Ongoing guidance

McGuireWoods LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide