Attorney-Client Privilege & Interactions with Third-Party Consultants

• Pages: 33-48
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: J. Paul Allen,Jessica Knox,Harper Heckman
• Subject Matter: Derecho Público y Administrativo

Published in The Construction Lawyer Volume 44, Number 3, ©2025 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction Law The Construction Lawyer Summer 2025

33

Attorney-Client Privilege & Interactions with Third-

Party Consultants

By J. Paul Allen, Jessica Knox, and Harper Heckman

J. Paul Allen is retired from an in-house construction career and occasionally provides consulting services

in the Cincinnati, Ohio area.Jessica Knox is a partner at Stinson, LLP, in Minneapolis, Minnesota.

Harper Heckman is a shareholder, on the board of directors, and chair of Maynard Nexsen’s Construction

Law Practice Group, located in Greensboro, North Carolina. The authors greatly appreciate the work

performed by John Knapp, Rory Gallagher, and Becca Favre at Stinson, LLP, in connection with this

article.

Introduction

Owners wear several hats on construction projects and it is often challenging to keep all discussions and

communications compartmentalized. Preserving information as privileged is critical for effective litigation,

however, and it easily can be waived if parties are not careful about how they communicate and share

information. This article addresses the law of attorney-client information by rst providing an overview

of attorney-client privilege, the condentiality requirements of ABA Model Rule of Professional Conduct

(the Model Rules) 1.6, and the work-product doctrine. It then discusses the nuances of attorney-client

privilege, including the challenges in-house counsel face with dual-purpose communications, what to

know when communicating with former employees, the purpose of the common-interest doctrine, the

value of litigation holds, and how to establish and maintain attorney-client privilege with third parties

(e.g., architects, engineers, and project managers). Finally, this article concludes with a treatment of risks

of waiving privilege and best practices for avoiding waiver.

Confidentiality is the bedrock of a healthy attorney-client relationship. Three bodies of law govern

information and communication in an attorney-client relationship: the attorney-client privilege, Model

Rule 1.6 on confidentiality, and the work-product doctrine. The purpose of protecting attorney-client

privilege is to encourage “full and frank communications between attorneys and their clients and thereby

promote broader public interests in the observance of law and the administration of justice.”1 Much

confusion remains in the area of attorney-client communication privacy rules, especially for in-house

counsel whose communications often serve dual purposes, and who often communicate with third-party

representatives and former employees. This article clarifies the rules surrounding attorney-client privacy

and illuminates the nuances so attorneys know what communications are protected.

Attorney-Client Privilege

Attorney-client privilege most often comes to mind when thinking about privacy of communications.

Attorney-client privilege seeks to protect “the condentiality of communications between attorney

and client made for the purpose of obtaining legal advice.”2 The basic elements for attorney-client

privilege include (i) a communication (ii) between an attorney and client (iii) designed to facilitate legal

representation and (iv) made in condence.3 Attorney-client privilege applies “in judicial and other

proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence

concerning the client.”4 The privilege only extends to communication related to legal advice and does not

attach to the facts underlying those communications.5

Published in The Construction Lawyer Volume 44, Number 3, ©2025 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction Law The Construction Lawyer Summer 2025

34

Attorney-client privilege can begin even before a client retains an attorney. Prospective clients who

conduct an initial consulting conversation with an attorney, whether or not the attorney ultimately

represents them, are covered by the privilege.6 The privilege also can extend beyond clients to former

employees and third-party consultants (discussed further below). Additionally, the privilege does not end

when the representation ends or is terminated; rather, it continues indefinitely.7 Consequences of breaching

attorney-client privilege vary depending on state law, but, in addition to significantly damaging the client’s

position in negotiations or litigation, a breach also can include professional penalties up to disbarment.8

ABA Model Rule 1.6 “Condentiality of Information”

Attorney-client privilege differs from condentiality, which the ABA Model Rule 1.6 governs. Rule 1.6

“Condentiality of Information” applies beyond communications where a lawyer may be called as a

witness but extends to all information related to representation.9 The rule states in part that “a lawyer

shall not reveal information relating to the representation of a client unless the client gives informed

consent, [or] the disclosure is impliedly authorized in order to carry out the representation.”10 In general,

the rule prohibits attorneys from sharing client representational information and prohibits the disclosure

of information that could reasonably lead to discovery by a third party.11 The rule allows attorneys to use

hypotheticals in discussion, but attorneys cannot reveal information that would expose the identity of the

client or their situation.12

Rule 1.6 allows attorneys to share client information if attorneys receive informed consent from the

client. Informed consent means the attorney explained the reasonable alternatives and material risks

of the proposed course of conduct and received approval to share the client information.13 An attorney

also can share information when implied authorization is provided. For example, an attorney can share

information that would help advance the interests of their client because it is reasonable to believe that the

client would consent to the release of that information.14

Although confidentiality is an important tenant, Rule 1.6 outlines a few exceptions allowing an attorney

to break confidentiality. The model rule authorizes the disclosure of confidential information where

disclosure is necessary to (i) prevent reasonably certain death or substantial bodily harm; (ii) prevent

a client from committing a crime or fraud that is reasonably certain to result in substantial injury to

financial or property interest of another; (iii) mitigate loss suffered due to a client committing fraud or

a crime that substantially injures the financial or property interest of another; (iv) secure confidential

legal advice about the attorney’s responsibility to comply with Rule 1.6; (v) establish a legal claim or

defense on behalf of the attorney in a controversy between the attorney and the client or to respond to

allegations against the attorney concerning their representation of the client; (vi) comply with other laws

or court orders; or (vii) detect and resolve conflicts of interest so long as the revealed information does

not compromise attorney-client privilege.15 Given that failure to follow Rule 1.6 may result in sanctions or

other disciplinary actions, understanding the expectations and the rule is critical.16

Work-Product Doctrine

The work-product doctrine promotes two major goals: (i) safeguarding the fruits of an attorney’s trial

preparation and (ii) preventing freeloading off an opponent’s work efforts.17 This doctrine was rst

introduced in the landmark case Hickman v. Taylor, where the US Supreme Court stated that “it is

essential that a lawyer work with a certain degree of privacy…. Proper preparation of a client’s case

demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts,

prepare his legal theories and plan his strategy without undue and needless interference.”18 The Hickman

court introduced a balancing test regarding work-product, stating that the need to safeguard the privacy

of an attorney’s work must be weighed against the public policy supporting reasonable and necessary

inquiries.19 The Hickman case went on to be memorialized in the Federal Rules of Civil Procedure, where