Characterizing Agents for Attorney-Client Purposes

May 16, 2001

Involving agents in attorney-client communications (or later sharing such communications with them) can destroy the attorney-client privilege. The key to determining the effect of such involvement depends on characterizing the agents’ role. Two recent related cases provide a perfect example.

In litigation involving Calvin Klein’s aborted sale of its assets to Tommy Hilfiger, the Southern District of New York addressed communications between Calvin Klein’s lawyers and (1) the investment banking firm of Lazard Freres; and (2) a public relations firm. In one decision, the court found that communications with Lazard Freres were protected by the attorney-client privilege, because Lazard Freres’ role was to assist Calvin Klein’s law firm in determining the “materiality” of statements and rendering legal advice to Calvin Klein in connection with the statements. Calvin Klein Trademark Trust v. Wachner, 124 F. Supp. 2d 207, 209 (S.D.N.Y. 2000).

In contrast, the court found that the law firm’s communications with the public relations firm were not protected by the attorney-client privilege, because the public relations firm was not assisting the law firm in providing legal advice (despite the law firm’s self-serving statements to the contrary). Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000).

Properly characterizing agents can make the difference between protecting important communications from disclosure and being obligated to reveal them to an adversary. Lawyers must understand the difference between agents’ roles and assist their clients in articulating (contemporaneously, if possible) any role that will later be helpful in protecting the privilege.