Attorneys rely on expert consultants in various cases, including accounting, engineering, forensic DNA evidence, fire science, and medical conditions. However, in working with a consulting expert, attorneys must carefully consider how to protect attorney-client privilege and work product privilege. It is important to remember that for a communication to be privileged, it must have been made to obtain legal advice. It is particularly true for consulting experts.
Just Keep It Simple
Many cases involving white-collar crime involve complex concepts beyond the scope of the average criminal defense attorney’s experience. As such, a lawyer may hire criminal defense consultants to provide specialized expertise. As the use of consultants increases, attorneys must be mindful of the potential for privileged communications to be discovered during discovery.
Fortunately, some best practices can be followed to protect such transmissions. One important factor is to avoid identifying an expert as both a consultant and a testifying expert. It is because, as discussed above, an expert designated as a testifying expert must disclose certain materials that a consulting expert does not have to.
Additionally, it is important only to engage a consulting expert when necessary for legal services and only for those legal services. If a consulting expert is engaged for business purposes or nonlegal reasons, the court may find that the communication is not privileged.
Keep It Confidential
As anyone involved in product liability litigation will recognize, hiring consulting experts who are not expected to testify is common. When preparing for trial, these specialists can be an invaluable resource for the lawyers. However, many parameters and exceptions should be considered when deciding what information to share with non-testifying expert consultants.
Even if an attorney has a clear legal purpose for engaging a consultant, communications with the consultant may still be discoverable. It is because a court will examine whether the consulting expert was engaged solely for business or legal purposes.
It is important to have a confidentiality agreement with the consultant stating that they are being hired exclusively to assist counsel in rendering legal advice. Additionally, it is a good idea to watermark or stamp each document that contains privileged information so that the production of these documents does not risk forfeiture.
Have a Written Agreement
When attorneys work with expert consultants, a delicate balancing act is required. Communications may be protected by the work product doctrine and the attorney-client privilege, depending on how the consulting relationship is set up.
To best protect confidential communications, counsel should be heavily involved in drafting or updating the initial consulting agreement as needed. In addition, courts examine whether the consulting arrangement resembles an employment relationship.
Requiring confidentiality and noncompete agreements, defining managerial or supervisory control, and separating the consultant’s work from commercial work are strong indicators that a consultant is the functional equivalent of an employee.
It is also a good idea to establish in the consulting agreement that the consultant is retained to obtain legal advice instead of seeking facts or opinions regarding the case. It will help avoid confusion if the attorney later discloses privileged information. Moreover, it will help prevent a situation where the lawyer has to babysit or police the expert’s report drafting.
Don’t Put It At Risk
Having the right expert can make all the difference in a case. Confidentiality and privilege are so important when working with these experts. However, many attorneys question when and how to work with consultants without violating attorney-client or work product protections.
For example, if a consulting expert is hired for business and legal reasons, they may not be protected by the work product doctrine or attorney-client privilege. Similarly, if the consulting expert discloses their opinion to a third party who does not share a common legal interest, it may be discovered by a court and privilege lost.
Limiting the number of people accessing consulting expert communications is also helpful. Ideally, those conversations should occur one-on-one with counsel or with only a small group of people (i.e., the legal team). It is a strong signal to courts that the communication is confidential and should remain privileged.