Most Courts Take a Narrow View of Client Agents Who Can Engage in Privileged Communications: Part II

June 25, 2008

As explained in last week’s Privilege Point, most courts define very narrowly the type of client agent who can engage in privileged communications with clients and their lawyers.

In Estate of Kotick, [No number in original], 2008 N.Y. Misc. LEXIS 2597 (N.Y. Sur. Ct. Apr. 25, 2008), Skadden Arps represented decedent’s son in a dispute with his stepmother (the decedent’s surviving wife). A Skadden Arps lawyer sent a memorandum to the firm’s client, with a copy to the client’s mother (the decedent’s former wife). The stepmother sought a copy of the memorandum, claiming that Skadden Arps waived the privilege by copying the client’s mother. Skadden Arps first argued that it also represented its client’s mother, but the court noted “there is nothing in the record suggesting that either the [Skadden Arps lawyer’s] memo was sent to [the mother] in the course of Skadden Arp’s [sic] representation of her or that [the mother] was acting as [her son’s] agent.” Id. at *7. The court then held that the client’s “expectation that [the memo] would remain confidential cannot be considered reasonable in the absence of any indication that she [the client’s mother] was acting as his agent.” Id. at *8. The court granted the stepmother’s motion to compel production of the memo Skadden Arps had shared with its client’s mother.

Just as with the Cleary Gottlieb lawyer in last week’s Privilege Point, the Skadden Arps lawyer learned the hard way that only a select few client agents operate within privilege protection.