26.11 - 2. Other Professionals

JurisdictionNew York

2. Other Professionals

Similarly, the privilege can also apply when attorneys utilize the services of non-legal professionals to assist them in providing legal advice. The extension of the privilege to the activities of these professionals is based on the principle that the privilege applies when an attorney utilizes a translator to communicate with a client who does not speak the attorney’s language. In United States v. Kovel, the Second Circuit noted that “languages” also apply to areas of expertise. In Kovel, the court considered the attorney’s use of an accountant in the course of providing legal advice. The court noted:

Accounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases. Hence the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not destroy the privilege, any more than would that of the linguist in the second or third variations of the foreign language theme discussed above; the presence of the accountant is necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit. 3734

The Kovel decision provides some important principles for determining whether the privilege applies to the third-party professional:

1. The assistance must be “necessary” or at least “highly useful”; and
2. The use of the third party must be related to the effective consultation between the attorney and the client.

Courts have applied these principles when determining whether privilege applies to third parties. For example, a federal court held that notes made by the consultants in the course of advising the attorney were privileged as their attendance was considered “necessary” to the attorney’s “rendition of legal advice.”3735

In Export-Import Bank of the U.S. v. Asia Pulp & Paper Co., Ltd., the court declined to extend the privilege to a financial consultant who acted as a “major participant” in Asia Pulp and Paper’s (APP) financial affairs during a restructuring noting that the consultant’s close involvement meant that he was “not a mere interpreter.”3736 Interestingly, APP argued in the alternative that the consultant was a de facto employee of APP as the contractor assumed “the functions and duties of full-time employees.”3737 In this capacity, APP argued, communications between a company’s lawyers and its...

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