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Current Developments in the Commercial Divisions of the
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Posted: February 14, 2016

Involving Consultants in Communications Did Not Vitiate Attorney-Client Privilege

On January 11, 2016, Justice Friedman of the New York County Commercial Division issued a decision in Lehman Brothers International (Europe) (in administration) v. AG Financial Products, Inc., 2016 NY Slip Op. 30187(U), holding that the attorney-client privilege was not vitiated by including consultants in communications.

In Lehman Brothers, a dispute arose regarding whether documents withheld from production by the defendant could be withheld as privileged when non-attorney consultants were included in the communications. The court confirmed the conclusions of a special referee that that documents were privileged, explaining:

In People v Osorio, the Court of Appeals restated the general rule that communications made in the known presence of a third party are not privileged. The Court held, however, that an exception exists for statements made by a client to the attorney’s employees or in their presence because clients have a reasonable expectation that such statements will be used solely for their benefit and remain confidential. Similarly, communications made to counsel through a hired interpreter, or one serving as an agent of either attorney or client to facilitate communication, generally will be privileged. The scope of the privilege is not defined by the third parties’ employment or function, however; it depends on whether the client had a reasonable expectation of confidentiality under the circumstances. While Osorio involved a third-party translator rather than expert, the Court relied in support of its holding upon United States v Kovel (296 F2d 918 [2d Cir 1961]), which remains perhaps the leading federal case on the applicability of the attorney privilege to communications involving third-parties. There, the Second Circuit held that a tax law firm’s client’s communication with an accountant, who was an employee of law firm, could be privileged if the communication were made in confidence for the purpose of obtaining legal advice from the lawyer. . . . .

Relying on Osorio, Courts have applied the attorney-client privilege to communications of one serving as an agent of either attorney or client.

Osorio and Kovel do not state, nor do the above cases, that the attorney-client privilege will attach to third-party communications only where the participation of the third-party is “necessary” in order to facilitate the provision of legal advice.

(Internal quotations and citations omitted) (emphasis added).

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