Clients and their attorneys often work with advisors. If such advisors are found to be outside of privilege protection: (1) communicating with them does not deserve privilege protection; (2) their participation in otherwise privileged communications terminates this protection; and (3) disclosure of pre-existing privileged communications to you waives this protection. Therefore, companies and their attorneys need to know the standard of privilege for any consultant.
In Universal Standard Inc. v. Target Corp., 331 FRD 80 (SDNY 2019), Judge Gorenstein dealt with the three most common types of consultants. First, client advisors are privileged if they are “deemed essential to facilitate communication between the lawyer and the client, such as an interpreter or accountant”. ID. at 87. Second, some consultants are the “’functional equivalent’ of a corporate employee”. ID. Third, some advisors support lawyers in providing legal advice to their clients. The court eventually concluded that the plaintiff’s public relations adviser did not fall into any of these protected categories and concluded that: (1) “BrandLink was not intended to enhance the attorney’s understanding of [plaintiff’s] Request for Legal Advice “(id. At 88); (2) BrandLink had” no independent authority to decide whether to issue a press release “and” did not work “. exclusively “for the plaintiff, but” provides services for over a dozen other brands “(id. at 90); (3)”[t]There is no evidence that the purpose of communicating with BrandLink was to assist, rather than allow, the legal counsel to perform any legal duty [plaintiff] to make a decision about the type of advertising that should be sought. “Id. at 92.
This New York borough statement provides a helpful checklist of what companies must prove in many courts when seeking protection to communicate with, in the presence of, or later with external consultants.