Third Parties and Attorney-Client Privilege: Common Interest, Functional Equivalence, Waiver

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, December 11, 2019

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will discuss significant exceptions to third-party attorney-client privilege waivers, including the Kovel doctrine for third-party consultants, the common interest doctrine, and the functional equivalent doctrine. The program will address the scope and applicability of these exceptions, including the steps counsel can take to leverage these exceptions, and case law developments regarding third-party attorney-client privilege waiver exceptions.

Description

The attorney-client privilege is put at risk when corporate counsel communicates with anyone outside the represented entity. In this day and age of outsourcing, consultants, and joint ventures, defining who is inside and who is outside the entity for purposes of protecting the attorney-client privilege is a difficult task. Nearly 50 years after Kovel's expansive view of the privilege, the law continues to evolve.

Companies may maintain the privilege for communications with company outsiders under several doctrines developed by the courts--for example, if the third parties can be shown to be the functional equivalent of employees of the company or agents of its lawyers. As another example, legal advice sought by both entities in a joint venture or merger may be protected by the privilege if the communications satisfy the common interest test.

These protections have their limits. Courts will look to the subject of the communication and the capacity of those communicating in determining whether the communication is protected.

Listen as our panel of experienced trial lawyers discusses exceptions to third-party attorney-client privilege waivers: Kovel, and the common interest and functional equivalent doctrines. The panel will analyze the doctrines' applicability to various corporate transactions and offer steps counsel can take to leverage these exceptions.

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Outline

  1. Kovel doctrine and third-party consultants
  2. Common interest doctrine
  3. Functional equivalent doctrine

Benefits

The panel will review these and other noteworthy issues:

  • What kind of evidence supports the functional equivalent test to allow privileged communications between attorneys and non-employees of the company?
  • What steps can companies in a joint venture take to meet the common interest exception to a third-party waiver of the attorney-client privilege?
  • What is the applicability and scope of the Kovel doctrine conferring privilege on confidential information provided by third-party consultants and professionals?

Faculty

Collins, Kevin
Kevin D. Collins
Partner
Bracewell

Mr. Collins is a former Assistant U.S. Attorney from the Eastern District of Texas, and he has focused on process...  |  Read More

Fisher, Donna
Donna L. Fisher
Senior Counsel
Troutman Pepper

Ms. Fisher a Senior Counsel at Troutman Pepper’s Harrisburg office. She concentrates her practice in civil...  |  Read More

Spahn, Brian
Brian C. Spahn
Shareholder
Godfrey & Kahn

Mr. Spahn’s practice focuses on complex commercial litigation and white collar defense and internal...  |  Read More

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