Attorney-Client Privilege

In my March 29th post on the attorney client privilege, I specifically noted that communications between in-house (or outside) counsel and employees or former employees could be privileged if the purpose of the communication was to enable the attorney to provide legal advice.  As I just learned the other day, however, under some circumstances, communications between a lawyer and an independant contractor or consultant hired by the true client can be protected by the attorney client privilege.

Starting way back in 1994, the 8th Circuit, in In re Bieter Company, held that the attorney client privilege could apply to communications between counsel and independent contractors of a client if “it [would be] inappropriate to distinguish between those on the client’s payroll and those who are instead, and for whatever reason, employed as independent contractors.”

While the Bieter case did not set forth a specific test to analyze under what circumstances a non-employees’ communications with counsel might remain privileged, a number of cases since have generally agreed that the key issue will be whether the individual is the “functional equivalent” of an employee.  So what does it mean to be the functional equivalent of an employee?  … Keep reading

Because the role of most in-house counsel goes well beyond that of providing legal advice, whether communications with in-house counsel are privileged is a much more nuanced issue than it is with respect to communications with outside counsel.

General Principles Applicable to all Claims of the Privilege

1.  Not all communications with attorneys are privileged; only communications for the purpose of obtaining legal advice are privileged.  Thus, even conversations between a CEO and his or her General Counsel about the most sensitive and confidential aspects of their business are subject to disclosure unless they are for the purpose of obtaining legal advice.… Keep reading