Report by Outside Environmental Consultant Found to be Protected by the Attorney-Client Privilege

January 10, 2001

The role of client and lawyer agents is one of the most important aspects of the attorney-client privilege for corporate lawyers. Generally, communications with agents retained by the lawyer to help the lawyer provide legal advice are protected by the attorney-client privilege, while communications with agents retained by the client to provide advice directly to the client are not protected by the privilege.

In Olson v. Accessory Controls & Equipment Corp., 757 A.2d 14, 26 (Conn. 2000), the court assessed a report prepared by an environmental consultant. The court cited many cases in which an environmental consultant’s report was found not to be privileged. The Olson court reached the opposite conclusion, pointing to the engagement letter between the law firm and the environmental consultant, which “indicated that [the lawyer] needed the [environmental consultant’s] report in order to provide the appropriate legal advice to the defendant.” The court rejected the adversary’s argument that “we should ignore the engagement letter and examine only the factual nature of the report.”

The court’s emphasis on language in an engagement letter highlights the importance of lawyers contemporaneously articulating why the lawyers require an outside consultant’s report. Preparing a proper letter might make the difference between winning and losing a later privilege fight over an important report.