October 26, 2022
Law360 quoted McGuireWoods counsel Tom Spahn in an Oct. 13, 2022, story that explored whether outside consultants enjoy blanket privilege protection if they are hired by an attorney rather than an attorney’s clients.
The question has become more pressing as boutique public relations work devoted to litigation communications has exploded, Law360 reported. In Martha Stewart’s high-profile insider-trading case nearly two decades ago, a federal judge ruled that communications between Stewart’s attorneys and a public relations firm they hired to manage her reputation were protected by attorney-client privilege. But some experts said the ruling is an outlier and that subsequent cases have demonstrated that judges are reluctant to expand the scope of attorney-client privilege. Spahn said Stewart’s case is “almost aberrational.”
“I'd love it to be true,” he said, “but I think the universal approach of all courts is to find PR consultants are outside privilege protection.”
Spahn, a member of Law360’s legal ethics editorial advisory board, said attorneys often don’t understand how easily confidentiality can be waived.
“A lot of lawyers think that they have some control by writing 'privilege' on a document or thinking, ‘I'll be the one to hire the PR consultant,’ ” he said. “Maybe we think we're more powerful than we are, but we can't overcome a legal doctrine.”
Since employees of a company are protected under the umbrella of privilege, attorneys could potentially safeguard communications with consultants by deeming them the “functional equivalent” of employees, Law360 reported. Spahn said the “functional equivalent doctrine” can be beneficial “because it says that somebody who is outsourced but acts like an employee will be treated like an employee.”
Spahn said attorneys who may want to extend work product protections to consultants should ensure their contracts with PR agencies specifically discuss litigation advice, and not just business strategy, in case a judge wants to consider the scope of the job agreed to.