Many people understand their communications with their lawyers concerning legal matters are protected from disclosure by the attorney-client privilege. However, they may not be aware that the privilege also protects communications by one serving as an agent of either the attorney or the client.
The attorney-client privilege is the oldest of the common-law evidentiary privileges (now codified by New York statute). Its purpose is to foster the open dialogue between a client and lawyer that is deemed essential to effective representation. It exists to ensure that a person seeking legal advice will be able to confide with an attorney fully and freely in the knowledge that those confidences will not be later revealed and cause embarrassment or harm to his or her legal position. A party may invoke the privilege to prevent disclosure of a communication with his or her attorney where the communication was for the purpose of facilitating the delivery of legal advice or services during a professional relationship, the communication was predominantly of a legal character and was confidential, and the privilege was not waived.
There is rarely a question about the applicability of the privilege when the client communicates directly with the lawyer and the communication otherwise meets the above-referenced criteria. Yet, New York courts hold that in some cases, the attorney-client privilege may be waived when the otherwise protected communication is made to or in the presence of third parties. Nevertheless, as with many legal rules, there are important exceptions to this rule.
In particular, New York’s highest court has made clear that “communications made to counsel through . . . one serving as an agent of either attorney or client to facilitate communication, generally will be privileged,” and that “statements made to the agents or employees of the attorney or client . . . retain their confidential (and therefore privileged) character, where the presence of such third parties is deemed necessary to enable the attorney-client communication and the client has a reasonable expectation of confidentiality.” As explained by another New York court, the privilege applies to legal communications “between the attorney and its agents and the client or its agents.” In short, “communications made to counsel by one serving as an agent of either attorney or client to facilitate communications will be privileged.”
The scope of the attorney-client privilege in this setting is not defined by the third-party agent’s employment or function; the key factor is the client’s reasonable expectation of confidentiality under the circumstances. When considering whether a third party is a client’s agent whose communications with the client’s lawyer are privileged, it is helpful to reference the law of agency. Under New York common law, an agency relationship results from “a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent of the other party to act.” It is not necessary that the client execute a writing appointing a third party to serve as her agent to allow the assertion of the attorney-client privilege for communications between the agent and the client’s lawyer. Agency need not be explicit and may be implied from the conduct of the parties.
There are many cases in which a member of the client’s family (such as a spouse or an adult child) was found to be the client’s agent whose participation in communications between the client and its attorney, or whose own communications with the client’s attorney on behalf of the client, were protected from disclosure by the attorney-client privilege. In one case, an elderly driver injured a number of people in an auto accident and was sued along with General Motors (“GMC”), the manufacturer of the automobile. GMC sought disclosure of all the elderly woman’s discussions with her own lawyers based on an argument that her daughter had been present during those conversations and that the privilege was accordingly waived. An appellate court reversed an order compelling the woman to testify about those discussions, noting the woman’s advanced age and the trauma she had suffered, and that her daughter selected the law firm to represent her, transported her to the law office, and helped her communicate effectively with the attorneys. Citing the above-referenced legal principles and the rule that the applicability of the privilege depends upon whether the client had a reasonable expectation of confidentiality under the circumstances, the appellate court held that it was unreasonable to discern any other expectation by either the woman or her attorneys because the daughter “was clearly acting as her mother’s agent in this setting.”
In another case, a trustee (who was also the decedent’s daughter) sought to suppress attorney-client material belonging to her late father that had been disclosed by his prior law firm pursuant to a subpoena. The other party argued that the attorney-client privilege had been waived during her father’s lifetime because he permitted his daughter to participate in many of the discussions with his then-attorneys. The court rejected that argument and held that the materials were privileged because it was apparent that the daughter had consulted with her father’s attorneys “on behalf of her father in a representative capacity.” The court noted that the trustee was not only the client’s daughter but was also involved in his various business enterprises and that any fair reading of the documents in question showed that “she enjoyed his complete confidence and functioned as his alter ego. As such, her role in the discussions was one of agent for him.”
There are many situations, particularly in litigation, in which it may become necessary for an adult child to serve as the elderly parent’s agent and interact with the parent’s attorney on the parent’s behalf, especially when the parent is in poor health or lacks the ability to use modern communications technology. Communicating with the attorney by email, participating in the search for and production of documents in discovery, and going over pleadings and other litigation documents with an elderly parent are just a few examples of an agent’s necessary involvement. New York law wisely allows the adult child to serve as a parent’s agent and provide that type of assistance secure in the knowledge that the parent’s confidences are protected.
If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Thomas F. Knab the author of this piece, here or at (716) 847-9104.