A Non-Employee “Managing Agent” May Not Be Entitled to Have Privileged Communications

August 7, 2002

Most courts take a fairly narrow approach when determining which individuals are within the attorney-client relationship for privilege purposes. A few courts have considered independent contractors who are the “functional equivalent” of employees to be within the small circle of those entitled to have privileged conversations, but they generally require specific proof of the independent contractors’ status.

In Horton v. United States, 204 F.R.D. 670 (D. Colo. 2002), the Court held that the attorney-client privilege could not protect communications between a company and the “managing agent” of an apartment complex that the company owned. The Court held that the company had not made the required “detailed factual showing that the non-employee is the functional equivalent of an employee.” Id. at 672.

Lawyers hoping to protect communications with independent contractors must be very careful to support their privilege claim with detailed factual evidence that the independent contractor is the “functional equivalent” of a corporate employee. Even then, most courts will not protect such communications.