Most courts find that the only client agents or consultants within the
attorney-client privilege are those necessary for the transmission of
information between the client and the lawyer. However, courts sometimes
disagree about whether a client agent's involvement meets the "necessary"
In July, well-respected Southern District of New York Magistrate Judge James
Francis held that two individual plaintiffs waived their privilege by disclosing
protected communications to their financial adviser, their accountant, and their
own son. See Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS
65974 (S.D.N.Y. July 2, 2010). Nearly two months later, in Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS 87484 (S.D.N.Y. Aug. 24, 2010),
Judge Kimba Wood agreed with Judge Francis's conclusion about the first two
client agents – but disagreed about the son. Judge Wood pointed to the son's
explanation that he was assisting his parents in sending and receiving e-mails
– ultimately concluding that "the technical assistance provided by their son,
in his capacity as their agent, should not constitute a waiver of the
attorney-client privilege." Id. at *13-14. Judge Wood also noted the public
policy involved, explaining that clients without technical expertise "should not
be prevented from enjoying the advantages of email correspondence for fear that
the necessary assistance of a third party – here, the Green Plaintiff's son –
in sending or receiving such correspondence will lead to the forfeiture of the
attorney-client privilege." Id. at *14.
Although it is comforting to know that parents might not waive their
privilege by having a child help with their e-mail, clients and lawyers should
remember that Judge Wood agreed with Judge Francis's conclusion about the
financial adviser and the accountant.