Attorney-Client Privilege: Be Vigilant or You May Lose It

The attorney-client privilege belongs solely to the client, and protects communications between a client and their attorney from disclosure permanently, and even after death, unless the client waives the privilege. The privilege can be waived either intentionally or unintentionally, and it’s easier to waive than you may think. Simply disclosing the information to a third person, even someone with a similar interest, or closely involved in the case, or even a loved one from whom you seek advice is enough to waive the privilege. There is, however, a narrow exception to this rule recognized in Massachusetts for third parties employed to assist a lawyer in rendering legal advice called “derivative attorney-client privilege.”

Purpose is Rendering Legal Advice

In order for the exception to apply, the third-party communication must be “necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.” The exception applies only to communications in which the third party plays an interpretive role, and must be for the purpose of rendering legal advice, rather than business advice. The involvement of the third party must be nearly indispensable or serve a specialized purpose in facilitating the attorney-client communications and does not apply to instances where an attorney’s ability to represent a client is merely improved or rendered more convenient by the assistance of the third party. A language interpreter would fit squarely within the exception, but what about the services of an accountant in a tax case?

Not Essential  to Attorney’s Legal Advice

In a recent Superior Court case, an attorney representing a company drafted an agreement in connection with a transaction. A company employee then sent the draft agreement to the company’s accountant and asked him to evaluate the tax implications. The accountant responded and exchanged emails with the attorney so that he could better understand the accountant’s recommendations. During the subsequent litigation related to the transaction, the other party sought to discover all the communications between the company, attorney and accountant. Relying on the attorney-client privilege, the company sought a protective order from the court. The Superior Court judge, however, found that the “derivative attorney-client” privilege did not reach the communications at issue. Although the judge specifically noted  that the accountant’s tax advice might have helped the attorney to redraft the agreement, relying on precedent the judge confirmed that “the attorney-client privilege does not apply where [an] accountant provides additional legal advice about complying with the tax code even where doing so would assist the attorney in advising the client.” The deciding factors in the case were that the company sought the accountant’s tax and financial advice on a legal matter which was not essential to the attorney’s legal advice. This case stands as another cautionary example to consider the consequences of sharing information you have discussed with an attorney with others, even those close to or with an interest in the case, lest you waive the attorney-client privilege without even realizing that you have.

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