10.8 NONDISPOSITIVE FACTORS
10.801 Introduction. Many courts have had to decide whether an agent should be considered a lawyer agent (inside the privilege) or a client agent (outside the privilege).
Not surprisingly, a prerequisite of privilege protection is that the communications to and from the agent relate to legal advice, rather than some other type of advice. To the extent that a lawyer is not acting as a legal advisor, 15 or the particular communication does not primarily relate to legal advice, 16 the privilege
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does not protect those communications to or from the agent. In fact, the privilege does not protect those communications to and from the lawyer either.
It should come as no surprise that clients and agents cannot assure privilege protection simply by claiming privilege, by creating certain documents, by undertaking some ministerial act, etc. As explained throughout this book, the privilege either applies or it does not. Parties cannot protect communications by agreeing that they deserve privilege protection, 17 avoid waiver by disclaiming an intent to waive, 18 by marking a document "privileged" or sending a copy to a lawyer, 19 etc. The key factor in determining whether an agent should be considered a protected lawyer agent is the agent's role in the lawyer's provision of legal advice to the client. This is discussed below. Before turning to the central issue, it is worth noting some of the logistical steps that lawyers can take with agents. Unfortunately, some lawyers erroneously believe that certain arrangements can assure protection. The bad news is that some arrangements can essentially doom any privilege claim, without the upside potential of assuring the protection.
10.802 Retention of Agent. First, courts examine who retains the agent. Although some courts view the hiring process as essentially neutral, 20 other courts think it is worth examining. As one court explained,
The issue of who engaged the accountant or other expert (i.e., the client or the attorney) and when the accountant or expert was retained (i.e., before or after the attorney) are factors that other courts have also considered when deciding whether the accountant's or expert's input into the attorney's legal advice is entitled to protection under the attorney-client privilege. 21
Courts trying to determine whether an agent was primarily retained to assist the client or to assist the lawyer sometimes point to the client's retention of the agent as essentially foreclosing the latter characterization. The Eastern District of New York reached this conclusion in a 1994 case.
They [the consultants] cannot be characterized as administrative practitioners since they were not employed by Phelps Dodge attorneys specifically to assist them in rendering legal advice. In
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fact, they were hired by defendants to formulate a remediation plan . . . and to oversee remedial work at the Property. Their function was not to put information gained from defendants into usable form for their attorneys to render legal advice, but rather, to collect information not obtainable directly from defendants. 22
Similarly, the First Circuit explained that it can be difficult for a lawyer to argue that an accountant was assisting the lawyer in providing legal advice when the client retained the accountant before retaining the lawyer. 23
As explained below, a few courts found that an agent originally retained by the client can "morph" into a lawyer agent entitled to privilege protection...
