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The Corporate Attorney-Client Privilege: Third-Rate Doctrine for Third-Party Consultants

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The Corporate Attorney-Client Privilege: Third-Rate Doctrine for Third-Party Consultants SMU Law Review Volume 62 Issue 2 Article 12 2009 The Corporate Attorney-Client Privilege: Third-Rate Doctrine for Third-Party Consultants Michele DeStefano Beardslee Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Michele DeStefano Beardslee, The Corporate Attorney-Client Privilege: Third-Rate Doctrine for Third-Party Consultants, 62 SMU L. REV. 727 (2009) https://scholar.smu.edu/smulr/vol62/iss2/12 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE CORPORATE ATTORNEY-CLIENT PRIVILEGE: THIRD-RATE DOCTRINE FOR THIRD-PARTY CONSULTANTS Michele DeStefano Beardslee* ABSTRACT: Due to the increasingly complex legal landscape, lawyers often rely on information and guidance from non-lawyer consultants such as account- ants, investment bankers, and public relations specialists to provide fully informed legal advice to their corporateclients. Currently, however, there is little agreement among federal courts on the appropriatestandard to ana- lyze the attorney-client privilege when lawyers' communications involve third-party consultants. Moreover, at the margins, third-party attor- ney-client privilege doctrine is both overly broad and overly narrow. The narrow interpretationshields third-party communications in the rarest of situations, for example, when the consultant is acting solely as an inter- preter. The broadest interpretation protects communications whenever they help the lawyer provide legal advice at the expense of the public's ac- cess to information. Thus, the doctrine protects communications that even those in favor of a robust corporate attorney-client privilege would not approve and denies protection in the very contexts for which the doctrine was created. This Article examines when communications with third-party consulta- tions should be protected. It is informed, in part, by some empirical re- search the author conducted on attorneys' communications with external public-relations consultants. It argues that exchanges between attorneys and third-party consultants should be protected in certain circumstances. As a means to achieve that protection, this Article recommends that the attorney-client privilege protect these exchanges 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 that communication with the third party was necessary to provide legal advice or services. To guard against the use of attorneys as shields for non-privileged communications and to help the court determine that the primary purpose of the exchange * Climenko Fellow and Lecturer on Law, Harvard Law School. I thank Jennifer Brown, John Coates, Desiree DeStefano, Mehran Ebadolahi, Jill Fisch, Bruce Green, Jim Greiner, Edward J. Imwinkelried, Emily Gold-Waldman, Nancy Moore, Andrew Perlman, Amanda Pustilnik, Margaret Raymond, Rob Rosen, Jed Shugerman, Eric Talley, and David B. Wilkins for comments on drafts. Thanks also to the participants in the Climenko Fellowship scholarship workshop and the Program on the Legal Profession Fellowship workshop. SMU LAW REVIEW [Vol. 62 was for legal (as opposed to business) advice, it proposes that courts also take into account: (1) whether the lawyers were not skilled in the area in which they sought expert assistance; (2) the way the communication was conducted or distributed; (3) contemporaneous documentary support; and (4) the substance of the law involved. Unlike the narroweststandard, this multifactored nexus test embraces the role third-party consultation plays in the provision of legal advice to large corporations. Unlike the broadest standard, this test prevents the ease with which corporations can funnel communications with third-party consultants that are unrelated to legal ser- vices through their attorneys for protection. Further,these recommenda- tions simplify the current doctrine and make it slightly more predictable. TABLE OF CONTENTS I. THE IMPORTANCE OF THIRD-PARTY CONSULTATION TO THE PROVISION OF LEGAL A D V IC E ................................................. 736 II. THE CORPORATE ATITORNEY-CLIENT PRIVILEGE AND THIRD-PARTY CONSULTANTS .................. 742 A. THE CORPORATE ATTORNEY-CLIENT PRIVILEGE ...... 742 B. THIRD-PARTY ATTORNEY-CLIENT PRIVILEGE D OCTRINE ............................................. 744 1. Third Party as Agent .............................. 744 2. Third Party as Functional Equivalent .............. 748 3. Functional Equivalent Versus Agent ............... 748 C. THE LAW-BUSINESS DISTINCTION IN THE THIRD- PARTY CONTEXT ...................................... 751 D. THE ROLE OF THE WORK-PRODUCT DOCTRINE ....... 755 III. ANALYSIS OF THE EXCEPTIONS ..................... 759 A. THE NARROW APPROACH Is Too NARROW ........... 760 1. Not in Keeping with the Spirit of the Doctrine ..... 760 2. May Result in Less Informed Decision-Making .... 763 3. May Discourage CorporateMisconduct But Not Enhance Discovery ................................ 766 4. May Not Increase Compliance ..................... 768 B. THE BROAD AGENCY APPROACH Is Too BROAD ..... 770 1. Not In Keeping with the Spirit of the Doctrine ..... 770 2. May Promote Informed Decision-Making and Compliance But Shield Information ................ 772 3. May Enable Corporate Misconduct ................ 773 C. THE FUNCTIONAL EQUIVALENTS TEST Is ALSO Too B RO AD ................................................ 774 1. Not In Keeping with the Spirit of the Doctrine ..... 774 2. May Increase Informed Decision-Making and Compliance but Decrease Discovery ............... 776 3. May Not Deter Corporate Misconduct ............. 777 2009] The Corporate Attorney-Client Privilege D. THE DOCTRINE IS UNPREDICTABLE AND SUBJECT TO A BU SE ................................................ 778 1. Covertly Unpredictable ............................ 778 2. Allows Inconsistent and Inequitable Results ........ 782 IV. RECOMMENDATIONS .................................. 783 A. SPECIFIC PROPOSAL ................................... 784 1. One Uniform Standard ............................ 784 2. A Nexus Test ...................................... 785 3. Four Factors....................................... 788 B . A NALYSIS ............................................. 794 1. Zone of Secrecy and Corporate Misconduct ........ 794 2. Compliance, Informed Decision-Making, and the Spirit of the Doctrine .............................. 796 3. Predictability/Clarity............................... 797 4. Other Considerations.............................. 800 INTRODUCTION A large publicly traded company releases an FDA approved drug into the marketplace. One year later, it becomes apparent that the drug is causing negative side effects in users. The Chief Executive Officer (CEO) wants a recommendation from the General Counsel about how best to limit legal liability and damage to the company's reputation. The General Counsel meets with the company's outside litigator, the inter- nal Director of Public Relations, and an external public-relationsconsult- ant (the drug-recall crisis team) to strategize about if, when, and how the drug should be pulled from the market or modified and what type of state- ments the company can, should, or must make. They discuss the possible impact various legal responses might have on the public and government officials, the company's negotiation power, and the potential jury pool. Having overseen the clinical trials conducted by external scientists, the General Counsel shares the studies (which had previously been dissemi- nated in the exact form to other members of the company) with the entire drug-recallcrisis team. The externalpublic relations (PR) consultant takes notes during the meeting. As requested by the General Counsel, the external and internalPR con- sultants preparetwo documents. One analyzes the potential reaction by the public and the government to various scenarios including pulling the drug, modifying the drug, and admitting or denying knowledge. Another pro- vides a recommendation on the best media response from a reputational standpoint. These documents together suggest that quick action along with contrition and admission is the best route. The General Counsel ultimately recommends to the CEO that the company pull the drug from the market, admit to knowing some of the adverse side effects, but explain that most had been disclosed in the drug's FDA-approved labeling. The PR execu- tives draft a proposedpress release about the recall. The General Counsel SMU LAW REVIEW [Vol. 62 and the outside attorneys look it over and make some suggested changes in writing on the draft. The draft press release is revised and then issued. After the company recalls the drug, its earnings are substantially below originalforecasts for that fiscal period. Consumers and stockholders file separate class actions against the corporation.' In general terms, this is a common scenario for large corporations to- day. They rely on a multidisciplinary web of services to conduct business in this increasingly complex, international marketplace.2 They routinely utilize outside professional advisors such as accountants, investment 3 bankers, PR specialists, and other types of professional consultants. Moreover, in order to provide fully informed, competent legal advice and services to their corporate clients,
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