Chapter 10 Lawyer Agents/consultants

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 10

LAWYER AGENTS/CONSULTANTS

10.1 INTRODUCTION

Lawyer agents or consultants can sometimes be inside attorney-client privilege protection.

• To deserve this protection, such agents generally must be assisting the lawyer in providing legal advice.

• This is normally called the Kovel doctrine, after a 1961 Second Circuit case. ¹

10.2 PRIVILEGE PROTECTION FOR LAWYER AGENTS

As with client agents, the privilege implications of lawyer agents' communications can arise in three different settings.

• When clients or their lawyers directly communicate with such agents.

• When such agents participate in otherwise privileged communications.

• When clients or their lawyers disclose pre-existing privileged communications to such agents.

10.3 COMPARISON TO CLIENT AGENTS

As explained in Chapter 9, most courts take a very narrow view of privilege protection for client agents, finding them inside privilege protection only if they are necessary for the transmission of privileged communications.

• Some courts limit privilege protection to such client agents as translators or interpreters.

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Courts' analyses of lawyer agents' privilege protection focus on whether the agents are assisting the lawyer in providing legal advice.

• However, both the necessity and translator/interpreter analyses from the client agent context seem to have affected courts' view of privilege protection for lawyer agents.

10.4 LAWYER AGENTS TRANSMITTING PRIVILEGED COMMUNICATIONS

The privilege clearly covers communications involving lawyers' staff necessary for the transmission of privileged communications or directly working for the lawyer.

• Examples include secretaries; file clerks; paralegals; other law firm or law department employees.

10.5 OTHER LAWYER AGENTS

Courts have struggled with analyzing whether other lawyer agents are inside privilege protection.

Unfortunately, courts often start with the client agent analysis, which normally limits privilege protection to client agents such as translators or interpreters.

• The seminal Kovel case ² found that an accountant assisting a lawyer in providing legal advice was within privilege protection by analogizing accounting concepts to a foreign language, and the accountant to a linguist.

• This unfortunate analogy has often limited the type of lawyer agents that courts will consider inside privilege protection.

10.6 SCOPE OF AVAILABLE PROTECTION

If a court finds that an agent assisting a lawyer in giving legal advice is inside privilege protection, the court can extend privilege protection to a number of communications.

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• Examples include communications between a lawyer and the agent; communications in which the client provides facts to the agent; materials the lawyer has given to the agent; materials generated by the agent.

10.7 PROTECTED LAWYER AGENTS VERSUS UNPROTECTED CLIENT AGENTS

Courts' reliance on the client agent analogy has often led them off in the wrong direction. Thus, courts sometimes look at whether a lawyer agent played an "interpretive" role in assisting the lawyer.

It would make far more sense to extend privilege protection to agents a lawyer reasonably believes would provide enough assistance to justify their involvement. In other words, courts should not second guess lawyers either about the need for an agent's participation or the type of role the agent plays in assisting the lawyer.

10.8 NONDISPOSITIVE FACTORS

Most courts hold that...