In deciding which client agents are within the scope of the attorney-client privilege, most courts limit the privilege to communications with client agents whose presence is necessary for the transmission of information. Examples include translators, interpreters, etc.
A few courts have taken a more expansive view, extending the privilege to independent contractors who are the “functional equivalent” of employees. One recent case carried this doctrine as far as it has ever gone, finding that employees of a “crisis management” public relations firm hired by Sumitomo to “handle public relations matters arising from the copper trading scandal” engulfing Sumitomo were entitled to have privileged communications with Sumitomo management, because the firm “was the functional equivalent of a Sumitomo employee.” In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 215, 219 n.4 (S.D.N.Y. 2001).
Although this recent decision represents the minority view, it provides hope for companies seeking to protect communications they have with independent contractors. Lawyers should take all appropriate steps to seek this protection in appropriate circumstances.