Due to the pressure to increase efficiency and shorten turnaround times, companies will often engage with third-party consultants to help with a variety of regulatory and compliance issues. Many times, these consultants will have access to privileged information in order to complete their tasks. Because of this, it’s imperative to look into ways to protect your company.
Attorney-client privilege and the work product doctrine provide for different scopes of protection. Depending on your situation, these two pieces protect different things. For example, if a document is prepared in anticipation of litigation, it may be protected under the work product doctrine, but not attorney-client privilege. Another example is confidential communication giving legal advice can be protected under attorney-client privilege, but not the work product doctrine.
These elements must be present for attorney-client privilege to apply:
– They must be a client.
– The communication must have been made to an attorney at the time of communication.
– The communication must have been by the client, not a third-party.
– The communication must have been made in confidence.
– It must be for the purpose of obtaining assistance in a legal proceeding or legal advice.
What is the work product doctrine?
– It allows attorneys to develop theories in connection with litigation without risk of the opponent discovering them.
– It is a qualified immunity from discovery of lawyer’s written statements, personal recollections or private memorandum that were made in anticipation of the litigation.
– Usually extends to materials prepared by a party’s agent, such as a third-party consultant.
– Statements and reports that were made by or to the consultant without a lawyer’s direction or supervision and made in the ordinary course of business are not privileged.
The work product doctrine is embodied in the court’s civil procedure rules, where the attorney-client privilege is a rule of evidence. When looking to maintain confidence in regards to third-party consultants, it’s imperative to look into both of these areas. It can be confusing as to the best course to protect your business, so you may wish to speak with a lawyer to fully understand how to move forward. These third-parties are valuable to your business, so you need to know how to work well with them, while still protecting confidential information about your firm as well as your clients.