Courts Continue to Catalogue Client and Lawyer Agents Outside Privilege Protection

September 16, 2015

Under the majority view, the only client agents/consultants inside privilege protection are those essential for the client-lawyer communications. Although courts take a more varied view of lawyer agents/consultants, many courts hold that the only lawyer agents within privilege protection are those essentially translating or interpreting data so the lawyer can understand it.

In Cardinal Aluminum Co. v. Continental Casualty Co., Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015), the court held that plaintiff’s insurance broker was outside privilege protection — despite the plaintiff’s CFO’s affidavit that the plaintiff relied on the broker to submit an insurance claim, negotiate with the insurance company, and advise the plaintiff about the claims process. Among other things, the court noted that “Plaintiff did not argue that its broker acted to effectuate legal representation for Plaintiff.” Id. at *8. About three weeks earlier, another court addressed a company’s claim that the privilege covered communications between its lawyers and environmental engineering firm AGC. NL Indus., Inc. v. ACF Indus. LLC, No. 10CV89W, 2015 U.S. Dist. LEXIS 86677 (W.D.N.Y. July 2, 2015). Although acknowledging plaintiff’s argument that AGC’s “actions were done at the direction of counsel,” the court found that AGC was outside privilege protection — noting that “[p]laintiff has not shown that AGC acted like an interpreter or translator of client communications.” Id. at *12.

One of the most dangerous client misperceptions is that the privilege can protect their communications with their agents/consultants. And one of the most dangerous lawyer misperceptions is that lawyers can automatically assume that their agents/consultants are within privilege protection.