Third-Party Attorney-Client Privilege Waiver Exceptions: Kovel, Common Interest and Functional Equivalent Doctrines

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

Conducted on Tuesday, October 16, 2018

Recorded event now available

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Program Materials

This CLE webinar 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 discuss the scope and applicability of these exceptions; steps counsel can take to leverage these exceptions; and case law developments regarding third-party attorney-client privilege waiver exceptions.


Companies increasingly outsource tasks and projects previously handled by in-house employees. That fact and the proliferation of joint ventures and mergers means attorney-client privilege risks when communicating with people outside the company or firm.

Corporate transactions and litigation often require attorneys and company management to rely on outside consultants and other third-party professionals. 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.

Listen as our panel of litigators guides you through exceptions to third-party attorney-client privilege waivers: Kovel, 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.



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


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?


Collins, Kevin
Kevin D. Collins


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

Pepper Hamilton

Ms. Fisher concentrates her practice in civil litigation, with an emphasis in the defense of pharmaceutical and medical...  |  Read More

Spahn, Brian
Brian C. Spahn

Godfrey & Kahn

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

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