48:2 The Application of the Attorney-Client Privilege to Interactions Among Clients, Attorneys, and Experts in the Age of Consultants: The Need for a More Precise, Fundamental Analysis

Article

Abstract

There is unanimity on the proposition that the attorney–client privilege protects the client’s revelations to the attorney while the overwhelming majority of courts also shield the attorney’s statements to the client. However, the picture is muddier when a third party intervenes between the client and attorney. The variation that has generated the sharpest split of authority is the fact situation in which the third party is an independent contractor expert hired by the attorney to assist in trial preparation. On the one hand, some have argued that the privilege must be adapted to recognize the modern reality of the extensive use of experts. On the other hand, the extension of the privilege to these interactions can have drastic consequences. The attorney–client privilege is absolute, and it is not subject to a client–litigant exception. Thus, if the privilege is extended to these interactions, a litigant may “shop around” until the litigant finds a favorable opinion, since the privilege will enable the litigant to suppress any unfavorable opinion. Worse still, a wealthy litigant may monopolize the experts in the field by contacting all the experts and suppressing any unfavorable opinions.

Many of the published opinions and commentaries on this problem suffer from two weaknesses. First, they are imprecise; they refer in general to the client’s “consultation” with the expert without distinguishing among the three distinct types of communication involved: the attorney’s communication with the expert when the attorney engages the expert (including revelations of the client’s disclosures to the attorney), the expert’s eventual report to the attorney, and the attorney’s ensuing advice to the client. Moreover, these opinions and commentaries often overlook the fundamental question. They address such issues as whether the expert consultant should be considered “a privileged person” or whether the attorney needs the expert’s insight in order to develop sound legal advice for the client. However, in principle the critical question is whether the specific communication in question ought to be characterized as a communication from the client to the attorney or one from the attorney to the client.

This article identifies some rare cases in which the communications exchanged in attorney-client-expert interactions warrant the protection of the attorney–client privilege. However, the article concludes that for the most part, the communications deserve at most protection under the conditional work product doctrine.