THE CORPORATE ATTORNEY-CLIENT PRIVILEGE: THIRD RATE DOCTRINE FOR THIRD PARTY CONSULTANTS

Michele D. Beardslee, Harvard Law School

Abstract

Currently, there is little agreement among federal courts on the appropriate standard to analyze the attorney-client privilege when communications involve third party consultants. At the margins, third party attorney-client privilege doctrine is overly broad and overly narrow. It protects communications even those in favor of a robust corporate attorney-client privilege should not approve and denies protection in the very contexts for which the doctrine was created. This inexactness is especially problematic for large corporate clients. Due to the increasingly complex legal landscape, lawyers often rely on information and guidance from non-lawyer consultants such as accountants, investment bankers, and public relations specialists to provide fully informed legal advice to their corporate clients. Although these communications are important to the provision of competent legal advice, protecting them from discovery makes it extremely difficult to detect corporate misconduct. Through exploration of the doctrine, preliminary results from a quantitative and qualitative study I conducted, and select paradigmatic situations that involve corporate attorneys communicating with third party consultants, this article examines this tension and ultimately recommends protection when there is a strong nexus between the consultant’s service and the legal advice provided to the client. It proposes that the proponent show not simply that communication with the third party helped the attorney but that it was necessary to the lawyer in providing legal advice or services. Additionally, based in part on the doctrine, this article presents three factors courts should consider when determining if a nexus exists. Unlike the narrowest interpretation of the doctrine, this nexus test considers the reality of modern practice and the role third party consultation plays in the provision of legal advice to large corporations. Unlike the broadest interpretation, this standard prevents the ease with which corporations can funnel communications with third party consultants unrelated to legal services through their attorneys for protection. Further, this recommendation enables better reasoned judicial opinions, and, by promulgating only one standard for communications with any type of independent third party consultant, it provides more predictability than the current doctrine.