§ 38.07 ATTORNEYS AND THEIR AGENTS DEFINED

• Jurisdiction: North Carolina

§ 38.07. ATTORNEYS AND THEIR AGENTS DEFINED

Proposed Rule 503 defined "lawyer" as "a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation."⁵⁴ A "representative of the lawyer" was defined as "one employed to assist the lawyer in the rendition of professional legal services."⁵⁵ Agents who assist in providing legal services, such as associates and secretaries, are included. When determining whether the privilege applies to communications between a client and an agent of the attorney, "what is vital is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer."⁵⁶ Extending the privilege to cover communications between a client and the attorney's agent is necessary for "the effective operation of the privilege of client and lawyer under conditions where the lawyer needs outside help."⁵⁷

Insurance companies. Some courts hold that communications from an insured to a representative of her insurance company fall within the privilege.⁵⁸ Other courts take a more restrictive view, requiring that "the dominant purpose of the communication" be for the insured's defense and that the insured have a "reasonable expectation of confidentiality."⁵⁹

Experts. Two different uses of experts must be distinguished. First, an expert may be retained for the purpose of testifying at trial. In this situation, any privilege is waived.⁶⁰ A "party ought not to be permitted to thwart effective cross-examination of a material witness whom he will call at trial merely by invoking the attorney-client privilege to prohibit pretrial discovery."⁶¹

Second, an expert may be retained for the purpose of consultation — e.g., to provide the attorney with information needed to determine whether a scientific defense is feasible. If such an expert provides an adverse opinion and the defense nevertheless desires to proceed with the defense, typically through the use of other experts, the question arises whether the attorney-client privilege precludes the prosecution from calling the defense-retained expert as a government witness.⁶²

Numerous courts have held that the attorney-client privilege covers communications made to an attorney by an expert retained for the purpose of providing information necessary for proper representation.⁶³ This interpretation of the privilege appears to be the majority view.⁶⁴ The argument supporting this position rests on the attorney's need to obtain expert advice. As one court has stated: "Only a foolhardy lawyer would determine tactical and evidentiary strategy in a case with psychiatric issues without the guidance and interpretation of psychiatrists and others skilled in this field."⁶⁵ An attorney, however, might not seek such assistance if an expert's adverse opinion could be introduced by the prosecution: "Breaching the attorney-client privilege . . . would have the effect of inhibiting the free exercise of a defense attorney's informed judgment by confronting him with the likelihood that, in taking a step obviously crucial to his client's defense, he is creating a potential government witness who theretofore did not exist."⁶⁶

Other courts have rejected the extension of the privilege in this context, although their reasons vary. First, some courts limit the privilege to communications between the attorney and client. Under this view, experts and other agents are not covered by the privilege.⁶⁷ Second, other courts hold that the privilege extends only to confidential communications and thus does not apply to experts who do not rely on the client's communications in reaching their opinions. Under this view, a psychiatrist may be protected by the privilege⁶⁸ but not a fingerprint examiner,⁶⁹ handwriting expert,⁷⁰ or pathologist.⁷¹ Third, still other courts hold that the privilege is waived when the defense introduces scientific evidence. Accordingly, a defendant who raises an insanity defense waives the privilege with respect to all psychiatrists who have examined the defendant.

In addition to the attorney-client privilege, defendants have argued that...