April 27, 2015 Update: Imagine an executive who fires off a revealing confidential letter to her lawyer and, on further inquiry, an adversary learns that the executive hand-wrote the letter and her secretary typed it up and sent it. Think the letter is still privileged? I don’t have any Minnesota case law in hand but I think the answer is “yes” and I think it is not even a close call. But many cases do hold that, “In general, the presence of a third party at a communication between counsel and client is sufficient to deprive the communication of confidentiality.”
I think the point here is that the secretary is not really a “third party.” I expect courts would almost universally hold that the secretary is an agent of the client, that is, the executive. So the secretary’s access to the communication does not constitute a waiver of the attorney-client privilege between the executive and her lawyer.
When is a “third person” a “third party” as opposed to “an agent“?
What if the facts above are the same but we replace “the secretary” with “the executive’s best friend”? And what if the best friend is not simply functioning as a secretary but more as a best friend? What if the best friend is actually “calling the shots” or directing the lawyer to do things (based on his understanding of the interests and objectives of his close friend, “the client”)? I think it is maybe a little bit harder to call the “best friend” the “an agent” of the executive. Still privileged? Some courts have held that the question is whether “the third party is a person to whom disclosure of confidential attorney–client communications is necessary to advance the representation…” If so, the disclosure will not waive the privilege. That would seem to make the secretarial role within the privilege, but what about the case of the best friend?
These issues are now being considered in an audacious (some would say outrageous) on-going battle in Hennepin County District Court described in earlier posts (set out after the break). (Some are outraged by one side. Some by the other side.)
For 30+ years, Defendant Jeff Nielsen in the Bohnen v. Dorsey & Whitney, LLP, et al. lawsuit, has had a confidante, Tim Nelson. Nelson was tasked by Nielsen to talk to Nielsen’s lawyers on Nielsen’s behalf. The question pending before the Court is whether Nielsen can invoke the attorney-client privilege to shield from discovery communications between Nelson and Nielsen’s lawyers. (Here is the plaintiff’s “letter brief.” Here is Mr. Nielsen’s affidavit in which he makes his case to keep the privilege.) To make this fact pattern just a tiny bit more complicated, note that Mr. Nielsen does not have an email account but he runs things through his son’s email account (see Affidavit at Para. 12) or maybe it is just “an account [his] son set up for [Nielsen] in 2010 under [Nielsen’s son’s] name…” (THANKS DAD!) So there’s another conduit to think about, not just Nielsen to lawyers via Nelson…