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Last week's Privilege Point dealt with the attorney-client
privilege implications of third parties' participation in
privileged communications, when the third party is acting on the
client's behalf. Third parties assisting lawyers also
occasionally participate in otherwise privileged communications.
Most courts apply what is called the Kovel standard, under
which the privilege protects such communications only if the third
party is necessary for the lawyer to fully understand the
client's communications (not merely if the third party's
involvement is useful to the lawyer).
In Ravenell v. Avis Budget Group, Inc., No. 08-CV-2113
(SLT), 2012 U.S. Dist. LEXIS 48658 (E.D.N.Y. Apr. 5, 2012), the
Eastern District of New York found that the privilege did not
protect in-house lawyers' communications with a consultant
assisting the company in a Fair Labor Standards Act audit. The
court noted that the consultant had preliminarily assessed whether
employees were exempt or nonexempt, an analysis "that in-house
counsel had the ability to make themselves." Id. at
*15. The court concluded that the consultant's work
"neither 'improve[d] the comprehension of the
communications between attorney and client'" nor
"provided advice outside the general expertise of attorneys
yet essential to the ability of defendants' lawyers to provide
legal advice." Id. at *15-16 (citation omitted).
Seven days later, another court reached the same conclusion about a
leasing agent's participation in privileged communications
– noting that "the mere fact that 'an
attorney's ability to represent a client is improved, even
substantially, by the assistance of [a third party]' is
insufficient for the attorney-client privilege to apply."
Banco do Brasil, S.A. v. 275 Wash. St. Corp., Civ. A. No.
09-11343-NMG, 2012 U.S. Dist. LEXIS 51358, at *21 (D. Mass. Apr.
12, 2012) (citation omitted). That court also found that the
leasing agent was not the "functional equivalent" of a
corporate employee. Id. at *20-21.
Lawyers often have as difficult a time as clients in
establishing that communications with or in the presence of third
parties acting on their behalf deserve privilege protection. Next
week's Privilege Point will deal with the "functional
equivalent" doctrine, which also involves third parties.
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