November 17, 2014
It is commonly known and accepted that attorneys frequently retain consulting or non-testifying expert witnesses to assist in trying a case.
While these experts are in a somewhat different position than testifying experts, the question has arisen as to whether or not attorney-client privilege (and the issues discussed among an attorney, client, and consulting expert) applies to consultants.
This article addresses what the general guidelines are with respect to attorney-client privilege and expert witnesses.
In general, communications between a non-testifying expert, attorney, and client are protected from disclosure by attorney-client privilege.
Although a consulting expert is technically a third party, if the consultant’s communications made are on behalf of the client to obtain legal advice, attorney-client privilege applies. See, e.g. U.S. v. Kovel, 296 F.2d 918, 922 (2nd Cir. 1961).
This legal rule is based upon the fact that attorney-client privilege is understood to extend to agents of the client or the client’s attorney, and non-testifying experts, under the circumstances aforementioned, are therefore considered agents of the client and/or the client’s attorney. See, e.g., Golden Trade v. Lee Ansrael Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992).
If a consulting expert is hired by an attorney to assist in dispensing legal advice, those communications are protected by attorney-client privilege.
However, there are instances in which a non-testifying expert’s opinion may not be protected under the doctrine of attorney-client privilege. For instance, if a consulting expert discloses their opinion to a third party who lacks a common legal interest, attorney-client privilege is waived.
Attorneys must also be careful on their part not to disclose any information that an expert imparted to them for the client’s benefit to a third party, as this may also bring into question whether the privilege still applies.
Finally, the client must not share the information given by a consulting expert because such an action would ordinarily waive attorney-client privilege.
However, it has been held that in cases where the client made a disclosure to a third party who is assisting the client’s attorney in obtaining legal advice, the client has not waived the protections of the attorney-client doctrine. See Kovel, supra at 922.
To a great extent, much of the question of whether or not a non-testifying expert’s work product is protected by attorney-client privilege turns on the issue of what purpose the information is intended for.
Consultants’ communications, where the consultant is acting as an “arm” or extension of an attorney, typically fall under the umbrella of a protected communication under the doctrine of attorney-client privilege.
In contrast, where a consultant is retained to determine the cause of a particular event, the communication is not typically a privileged one, and the information imparted by the consultant may be discoverable. See, e.g. Federal Rule of Civil Procedure 26(b)(4)(B).
Clearly, it is important to understand the distinction between when experts are the attorneys’ agents, versus when they are collecting factual information. This distinction is made clear by the analysis of the Court in U.S. Postal Service v. Phelps Dodge Refining Corp., 825 F. Supp. 156 (E.D.N.Y. 1994).
The Phelps court stated that an expert’s opinion may not be protected by attorney-client privilege where the expert’s “function was not to put information gained from defendants into usable form for their attorneys to render legal advice, but rather, to collect information not obtainable directly from defendants.” Id.
The court clarified that where an expert bases observations on factual and scientific data that he or she collected, rather than on client confidences, the former communication is not protected by attorney-client privilege. Id.
The underlying rationale in Phelps was that where an expert is hired to collect information that is typically factual and is obtained from sources other than the client, that expert is no longer acting as an agent of the client or the client’s attorney.
In most cases, attorney-client privilege will protect the work of a consulting expert.
To be certain that this is the case, attorneys must ensure that the information from the consulting expert is given for the purpose of providing legal advice.
If that premise can be maintained, attorneys should have no trouble in protecting the work product of their consulting experts.