Chapter 8 Client Agents/consultants

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

Chapter 8

CLIENT AGENTS/CONSULTANTS

8.1 INTRODUCTION

Perhaps the most counterintuitive and dangerous aspect of attorney-client privilege law involves client agents—whose participation or later sharing in privileged communications normally aborts or waives the fragile attorney-client privilege protection.

• Most courts extend privilege protection only to client agents necessary for the transmission of privileged communications between the clients and their lawyers.

8.2 CHARACTERIZATION OF CLIENT AGENTS

The privilege implications of client agents can arise in three separate settings.

• When clients or their lawyers 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.

Under the majority rule, in all three contexts the bottom line is the same—if the client agent is outside privilege protection, the privilege is either unavailable or waived.

8.3 CLIENT AGENTS NECESSARY TO TRANSMIT COMMUNICATIONS

Courts agree that the privilege protects communications with client agents clearly necessary to transmit privileged communications.

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• Examples include interpreter or translator required by the client to effectively communicate with a lawyer; member of the client's staff, such as a secretary or administrative assistant, who merely creates, transmits or files the privileged communications; mother acting as her incarcerated son's agent in arranging for a lawyer; representative of an incapacitated person, for example, parents of a quadriplegic assisting in finding a lawyer for their son; parents helping a minor child who requires legal advice or representation.

8.4 DEFINING THE LEVEL OF NECESSITY

Beyond client agents clearly necessary for the transmission of privileged communications, courts disagree about the standard for determining if a client agent is inside or outside privilege protection.

•	The Restatement 1 and some courts find that the privilege extends to communications with, in the presence of, or shared with, client agents who assist the client in some way.
•	Most courts take a far narrower view, and find that the privilege extends only to client agents necessary, or in some cases indispensable, to the transmission of privileged communications.
VA	A Virginia circuit court 2 took a narrow view of client agents within privilege protection, while another Virginia

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