Client Consultants’ Role Can Change Over Time, With Differing Waiver Implications

May 10, 2023

Some lawyers erroneously assume that the fragile attorney-client privilege protection normally survives disclosure (by them or by their clients) to the client’s consultant/agent. That can be true in very limited circumstances, depending on that consultant/agent’s role — which can change over time.

In Abrahami v. Meister Seelig & Fein LLP, No. 21-CV-10203 (JFK) (KHP), 2023 U.S. Dist. LEXIS 29664, at *12 (S.D.N.Y. Feb. 22, 2023), SDNY privilege guru Judge Parker described New York’s “two-prong test to determine whether disclosure by a party to a purported client agent results in waiver of the attorney-client privilege.” In addition to satisfying the obvious “reasonable expectation of confidentiality under the circumstances” standard, avoiding a waiver requires that “the involvement of the third party [was] nearly indispensable or serve[d] some specialized purpose in facilitating the attorney-client communications.” Id. at *12-13 (alterations in original) (citation omitted). This is an incredibly demanding standard. In the case before her, Judge Parker addressed communications with an agent the client hired “to negotiate the transaction [for a commission] and interact with his lawyers.” Id. at *2. She held that the privilege protected the agent’s “initial communications with [the client’s law firm] Seyfarth . . . to provide information necessary to rendering legal advice.” Id. at *18. But the privilege did not protect communications with the client’s agent after his “role as agent ended . . . once Seyfarth gathered the information it needed to provide legal advice.” Id.

Judge Parker’s temporal analysis had real world consequences — “one document reflects communications that occurred after Seyfarth had completed its initial fact investigation” and therefore was “not privileged and must be produced.” Id. Lawyers must not only assess whether their client’s agent is “nearly indispensable” to the lawyers’ rendering of legal advice to their clients; they must also consider whether that analysis changes over time.