Many lawyers and most clients erroneously assume that third parties assisting lawyers are almost always inside privilege protection and that many third parties assisting the clients are sometimes protected. They usually point to United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) – which unartfully analogizes an accountant assisting a lawyer to a translator, because accounting jargon is like a foreign language. So they believe entering into a “Kovel Agreement” will provide privilege protection to any third-party agent. However, most courts ignore such self-serving agreements and instead look to the law to extend privilege protection only to (1) client agents who are necessary for the transmission of communications with the lawyer and (2) lawyer agents who are “nearly indispensable” to the lawyers’ provision of legal advice.
In Sun v. Geffen, No. 25 Civ. 995 (AT) (GS), 2026 U.S. Dist. LEXIS 142293 (S.D.N.Y. June 26, 2026), Magistrate Judge Gary Stein addressed plaintiff’s argument that his outside art adviser was “in ‘the tent’ of the attorney-client privilege” because she was ” ‘necessary to [plaintiff’s lawyer] receiving information’ so that [the lawyer] could render legal advice.” Id. at *5-6 (citations omitted). After examining the withheld communications, the court explained that the art adviser’s “essential role was to provide [plaintiff’s lawyer] with factual information about the transaction and the transaction process” – and bluntly rejected plaintiff’s claim that the agent “was, in any significant way, imparting specialized knowledge in her capacity as an art expert that was necessary for [plaintiff’s lawyer] to render effective legal advice – let alone acting as ‘a translator or interpreter of client communications.’ ” Id. at *26 (citation omitted).
Obviously, lawyers properly recognizing this extremely narrow privilege protection may still communicate with their clients’ and their own agents. But rather than finding out later to their dismay that the communications were not protected, they should from the beginning restrain themselves and warn their clients not to say or write anything that they wouldn’t mind falling into a later adversary’s hands.