Sealing the deal: how attorney-client privilege affects outside consultants.

• Author: Yu, Jacqueline D.
• Position: Professional issues

It's a standard plot device in "Law and Order"-type TV dramas; The cops want to know something the bad guy has told his lawyer, but they can't make the lawyer give up the information became of attorney-client privilege.

Remarkably, this screenwriting gambit assumes dial the audience will understand not only what that privilege is, but also the powerful shield of confidentiality it imparts.

But what those TV viewers--along with most CPAs, consultants, investment bankers and other business advisers--don't know is under specific circumstances, the attorney-client privilege can also extend to communications between these advisers, their client and the client's attorney, including documents prepared by them for the attorney's use an behalf of Use client.

Attorney-client Privilege

The attorney-client privilege, which traces back to the 16th Century, is intended to ensure dial a client who seeks advice from an attorney need not fear that his or her secrets will be disclosed.

The privilege requires that several elements be present:

* There needs to be a communication between a client and an attorney made with the intent that it be kept confidential for the purpose of providing legal assistance to the client.

* The protection of privilege extends only to communications, not to facts [United State & Construction Product Research).

* The communication must be made to facilitate the rendering of legal services to the client. Business and personal advice are not covered by the privilege (Coleman & Am. Broadcasting Cos.).

Therefore, when an attorney serves in a non-legal capacity, such as a preparer of tax returns or as a business adviser, his or her communications and work papers may not be deemed as one protected by privilege and work product doctrine, respectively.

The party asserting the privilege must establish that the communication relate) to legal advice and nut business matters. At that point, the burden of proof shifts to the party seeking to overcome the privilege.

Work-product Doctrine

The Federal Rules of Civil Procedure says that the work-product doctrine applies to "documents and tangible things ... prepared in anticipation of litigation," The protection has been extended to intangible work product, which is broader than the attorney-client privilege, but it is a qualified protection, unlike the attorney-client privilege, which is absolute.

The Rules of Civil Procedure distinguishes between two types of work product;

* "Fact" work product...