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Third Parties and Attorney-Client Privilege: Common Interest, Functional Equivalence, Waiver

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, April 12, 2023

Recorded event now available

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This CLE course will discuss significant exceptions to third-party attorney-client privilege waivers, including the Kovel doctrine for third-party consultants, the common interest doctrine, and the functional equivalent doctrine. The program will address the scope and applicability of these exceptions, including the steps counsel can take to leverage these exceptions, and case law developments regarding third-party attorney-client privilege waiver exceptions.

Description

The attorney-client privilege is at risk when corporate counsel communicates with anyone outside the represented entity. In this day and age of outsourcing, consultants, and joint ventures, defining who is inside and outside the entity to protect the attorney-client privilege can be difficult. The law continues to evolve decades after Kovel's expansive view of privilege.

Companies may maintain the privilege for communications with company outsiders under several doctrines developed by the courts--for example, if the third parties can be shown to be the functional equivalent of employees of the company or agents of its lawyers. As another example, legal advice sought by both entities in a joint venture or merger may be protected by the privilege if the communications satisfy the common interest test.

These protections have their limits. Courts will look to the subject of the communication and the capacity of those communicating in determining whether the communication is protected.

Listen as our panel of experienced trial lawyers discusses exceptions to third-party attorney-client privilege waivers: Kovel and the common interest and functional equivalent doctrines. The panel will analyze the doctrines' applicability to various corporate transactions and offer steps counsel can take to leverage these exceptions.

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Outline

  1. Kovel doctrine and third-party consultants
  2. Common interest doctrine
  3. Functional equivalent doctrine

Benefits

The panel will review these and other noteworthy issues:

  • What evidence supports the functional equivalent test to allow privileged communications between attorneys and non-employees of the company?
  • What steps can companies in a joint venture take to meet the common interest exception to a third-party waiver of the attorney-client privilege?
  • What is the applicability and scope of the Kovel doctrine conferring privilege on confidential information provided by third-party consultants and professionals?

Faculty

Antezana, Patricia
Patricia E. Antezana
Counsel
Reed Smith

Ms. Antezana focuses her practice on general litigation, including commercial matters, business torts and product...  |  Read More

Spahn, Brian
Brian C. Spahn
Shareholder
Godfrey & Kahn

Mr. Spahn’s practice focuses on complex commercial litigation and white collar defense and internal...  |  Read More

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