Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if they assist those lawyers in giving legal advice. But lawyers cannot automatically assure protection by retaining such agents/consultants themselves or jointly with their clients (as Pierce Atwood learned in one of the cases discussed last week).
As in so many other contexts, the underlying documents must support any assertion that lawyers' agents/consultants helped them give legal advice. In Legends Management Co. v. Affiliated Insurance Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017), the court held that a forensic accountant retained by a law firm was inside privilege protection. The court warned that "[c]ommunications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence." Id. at *10. Significantly, the court reviewed the withheld correspondence in camera, and agreed that "[t]he 'express purpose' of [the forensic accountant's] emails was to relay his accounting expertise and allow [the law firm] to render legal assistance." Id.
Lawyers, their clients, and their agents/consultants should remember that courts will often examine any withheld documents for proof that either client’s or lawyer’s agents/consultants facilitated or assisted lawyers in advising their clients.