Courts Explore Privilege Ramifications of Communicating with Client Agents

October 15, 2008

Courts often analyze whether a client’s agent falls within the intimate attorney-client relationship for privilege purposes. The court’s conclusion determines whether (1) communications with the agent deserve privilege protection; (2) the agent’s presence during otherwise privileged communications aborts the privilege; and (3) disclosure to the agent waives the privilege.

Unfortunately, it can be difficult to find any consistent pattern. In Sokol v. Wyeth, Inc., No. 07 Civ. 8442 (SHS)(KNF), 2008 U.S. Dist. LEXIS 60976 (S.D.N.Y. Aug. 4, 2008), Magistrate Judge Nathaniel Fox held that a lawyer’s client assisting another client was outside the privilege, so communications between the two clients did not deserve privilege protection. Eight days later, a Delaware state court held that the client’s financial adviser Merrill Lynch was inside the privilege, so that a Vinson & Elkins lawyer did not waive the attorney-client privilege by sending Merrill Lynch a copy of a privileged e-mail. Hexion Speciality Chems. v. Huntsman, Inc., C.A. No. 3841-VCL, 2008 Del. Ch. LEXIS 108 (Del. Ch. Aug. 12, 2008). On the same day, another court held that a client’s investment banker was outside the privilege, so that disclosing protected documents to the investment banker waived the privilege (but not the work product doctrine). La. Mun. Police Employees Ret. Sys. v. Sealed Air Corp., Civ. A. No. 03-CV-4372 (DMC), 2008 U.S. Dist. LEXIS 61676 (D.N.J. Aug. 12, 2008).

Although courts disagree about the ability of client agents to act within the intimate attorney-client relationship, most courts take a narrow view.