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

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.