A lawyer represents a defendant in a civil lawsuit. The lawyer receives a request for production of documents from opposing counsel. Among the documents are several emails between the client and a non-lawyer business consultant discussing strategic business decisions related to the subject matter of the lawsuit. The client has marked these emails as 'confidential.' Does the attorney-client privilege protect these emails from disclosure?
- AYes, if the business consultant was acting as an agent of the attorney for the purpose of rendering legal advice.
- BNo, unless the emails contain legal advice from the lawyer that was merely forwarded by the consultant.
- CYes, because the client marked them as confidential, indicating an intent to keep them private.
- DNo, because the emails were not directly between the client and the lawyer.
Show answer & explanationAnswer & explanation
Correct answer: A. Yes, if the business consultant was acting as an agent of the attorney for the purpose of rendering legal advice.
The attorney-client privilege generally only applies to communications between a client and their attorney. However, it can extend to communications involving a third party if that third party is acting as an agent of the attorney (e.g., an investigator, expert, or, in some cases, a consultant) to facilitate the provision of legal services. The key is whether the communication was made for the purpose of obtaining or providing legal advice.
Why the other options are wrong
- B. The privilege can apply to original communications with a consultant if that consultant is acting as an agent of the attorney to facilitate legal advice, not just forwarded legal advice.
- C. A client's subjective intent to keep something confidential does not automatically invoke attorney-client privilege; the communication must meet the privilege's criteria.
- D. This is too narrow a view. The privilege can extend to communications involving agents of the attorney or client, provided they are for the purpose of obtaining or providing legal advice.
Attorney-Client Privilege (Third Parties)
Attorney-client privilege can extend to communications involving third parties if they are agents of the attorney or client, and their presence is for the purpose of facilitating the rendition of legal services.
- Privilege protects confidential communications for legal advice.
- Third parties must be agents, necessary for the communication.
- Mere presence of a third party generally waives privilege unless an exception applies.
Memory trick: Privilege's Circle: Client, Lawyer, and Their Needed Agents.