Cite this page 33 M.L.W
. 1119
Massachusetts Lawyers Weekly • 11
January 17, 2005
Protecting Privilege And Work Product:
Disclosure To Agents Of The Attorney Or Client
ney is not enough . The
third party must be
In previous columns, I have discussed attorengaged for the specifney-client privilege and work product including
ic purpose ofaidingthe
the elements of privilege and some of the inattorney in rendering
a legal opinion to his
stances when the privilege is preserved, such as
client.
through common defense agreements, or
Thus, a client's comwaived, such as by inadvertent disclosure of
privileged documents .
munications with an
accountant employed
This column will discuss when a lawyer
by his attorney were
may disclose privileged information to an
privileged where they
agent of the lawyer or the client without
were madeforthepurwaiving the privilege.
pose ofenabling the atAttorney-client privileged information is
torney to understand
limited to confidential communications between a lawyer and a client wherethe client
the client's situation in
order to provide legal
is seeking lawful legal advice . See, e.g., US.
v. United Shoe Machinery, 89 F. Supp . 352 services. See Kovel, 296 F2d at 922 .
(1950); Upjohn v. US., 449 U.S . 383 (1981) .
Generally, disclosing attorney-client comThere are some very
interesting cases ofremunications to a third party destroys the attorney-client privilege because the communicent vintage setting
cation is no longer confidential. One exception
out some of the parameters of this exception to
Ihave previously discussed is common defense
the waiver of the privilege or work product protection.
agreements, where disclosure to other members of a joint or common defense agreement
One involves Dr. Phillip McGraw ("Dr. Phil")
does not constitute a waiver of the privilege .
whose primary claim to fame, before he beAnother exception to this rule exists for
came a daily staple on television, was as a trithird parties employed to assist a lawyer in
al consultant whose clients included some of
rendering legal advice, a concept first recogthe largest corporations in the United States
nized in United States v. Kovel, 296 R 2d 918
as well as Oprah Wmfrey, when she was sued
(2d Cir.1961) . There, Judge Henry Friendly
by cattle ranchers in Texas for defamation.
wrote that due to the complexities of the
In a recent decision in the 3rd Circuit, Cenmodern existence in the lawyer-client reladant Corp. Securities Litigation, 2003 WL
tionship, the attorney-client privilege "must - 22133429, Dr. Phil was hired by lawyers for
include all the person's who act as the attorthe accounting firm, Ernst & Young, which
ney's agents." Kovel, 296 F2d at 921 .
was involved in the remnants of a class acInKovel, the issue was whether communica- tion for accounting fraud brought against
tions with an accountant hired by the lawyers
Ernst & Young and the Cendant Corp.
fell within the scope of attorney-client privilege.
Dr. Phil assisted Ernst & Young's lawyers
The court noted that if what is sought is not lein preparing a witness for a deposition durgal advice, but only accounting services, or "if
ing which the lawyers for Cendant sought to
the advice sought is the accountant's rather
question the witness about what he and Dr.
than the lawyer's, no privilege exists ."
Phil discussed as part of the witness's prepaThe mere showing that the accountant, or
ration for the deposition .
other hired third party is an agent of the attorErnst & Young's lawyers objected to this
line of questioning, claiming both attorneyArnold R . Rosenfeld is of counsel in the
client privilege and work product protection .
Boston office of Kirkpatrick & Lockhart
The special discovery master upheld the
Nicholson Graham. He formerly served as claim . The U S. District Court reversed and
the chief bar counsel of the Board of Bar the 3rd Circuit reversed the District Court .
Overseers ofthe Supreme Judicial Court . He
The key, according to the 3rd Circuit opinion,
also currently is a visiting professor of law at was that Dr. Phil was assisting Ernst & Yonn 's
Boston University School ofLaw.
lawyers in preparing the witness for a deposiBY ARNOLD R . ROSENFELD
lion, and therefore the
eluded that few, if any, contained or revealed
communication was confidential communications from the client
made for the purpose ofobtaininglegal advice .
intended to aid the attorneyinrenderingle- Second, the evidence showed that the PR
gal advice to the
firm; which had a preexisting relationship
client.
with the plaintiffs, was "simply providing or
dinary public relations advice so far as the
lawyers who hire
public relations ex
documents were concerned ."
perts to assist their
Finally, the court found no justification for
clients represent an
broadening the privilege to cover functions
other instance where
not "materially different from those that any
the purpose and
ordinary public relations firm would have
function of the conperformed if they had been hired directly by
sultant is critical.
[the plaintiffs], (as they also were), instead
In two recent New of by [their] counsel ." Id.
York cases, the federThus, the requirements to maintain atel district courts con
torney-c ientprivilege and work product prosidered the issue of
tection are limited to the following situations:
disclosure
-P
• The third party must have been engaged
of privileged commuor hired by the attorney;
nications to public relations firms .
One court upheld the privilege, noting that
the ultimate issue "resolves itself to whether
attorney efforts to influence public opinion
in order to advance the client's legal position
. . . are services, the rendition of which also
should be facilitated by applying the privilege to relevant communications which bas
thic as their object." In re Grand Jury Subpoenas Dated March 24, 2004, 265 F Supp.2d
at 326 (S.D.N.Y 2003).
In the other case, Calvin Klein Trademark
Trust v. Wachner, 198 F.R .D . 53 (S .D.N.b2000), the plaintiffs' attorneys hired a pubhe relations firm in anticipation offiling what
promised to be a high-profile civil lawsuit
against a licensee and its well-known chief
executive
The plaintiffs contended that the purpose
was defensive, that is, to assist the lawyers
in understanding the possible reaction of the
plaintiffs' various constituencies to the litigation, rendering legal advice, and ensuring
that media interest in the action would be
dealt with responsibly.
The plaintiffs subsequently invoked the attorney-client privilege and work product doetrine in an effort to block document production by the PR firm and one of its employees .
Id. at 54-55 .
The court rejected the attorney-client privilege claim on three grounds .
First, afterreviewing the documents, it con-
• For the specific purpose of aiding the attorneymrendeing
advice to the client; and
: • The coni'mumcationbetween the third par
ty and the attorney must be intended to
ultimately aid the attorney in rendering
legal advice to the client .
The purpose and actual use of the consultant or adviser is key. For example, a lawyer
:
representing a client who has had a sexual
relationship with a. female under 16 and who
- is seeking legal advice
on how to handle the
client's legal exposure could hire psychiatrist to assist him/her in evaluatingthe client
while maintaining the privilege. But if the
lawyer hired the psychiatrist as a therapist
for the client, the psychiatrist's role would
not be to aid in providing legal advice and the
psychiatrist's discussions with the client
would not be protected under attorney-client
privilege or work product (although the conversations may be protected by the psychiatnst-patient privilege)
Attorney-client privilege and work prod
uct protection can be very valnahleto a client.
- In the view of many commentators, recent
cases have resulted in an erosion of the privilege and work product .
Careful planning by lawyers in protecting
the privilege and work product is an essential ingredient of good lawyering and safeguarding of the client's interests .
-
a