The lawyer-client privilege is one of the oldest and most important privileges of confidential communications in our judicial system. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “The purpose of the privilege is to encourage the client to confide fully in his counsel without fear that his disclosures could be used against him by his adversaries.” State v. Gravois, No. 22-K-267 (La. Ct. App. 5 Cir. 2022). However, when the communication at issue is made in the presence of third parties, the client’s intent of confidentiality is usually absent and may serve to waive the protections of the privilege. See State v. Montgomery, 499 So. 2d 709, 711 (La. Ct. App. 3 Cir. 1986).
Third Party Agents of the Lawyer
Courts have recognized that “[w]hether the presence of a third party will destroy the privilege depends on the identity of the third party and whether the client could reasonably have believed the communication would remain confidential. See State v. Montgomery, 499 So. 2d 709, 711-12 (La. Ct. App. 3 Cir. 1986). When the third party is an agent of the lawyer, such as a clerk of a stenographer, the privilege will be preserved despite the third party’s presence during the communications. See 8 WIGMORE, EVIDENCE sec. 2301 (McNaughten Rev. 1961) (explaining the long-recognized principle that the privilege protects communications to the attorney’s clerks and his other agents (including stenographers) for rendering his services).
Third Party Agents of the Client
A New York court recently expanded this exception by finding that a third party who was an agent of a litigant did not waive the lawyer-client privilege. As explained by the New York Court:
Following its in camera review, Supreme Court providently exercised its broad discretion in finding that notes of a meeting between defendant Mark Harounian and his divorce counsel were privileged even though they were created in the known presence of a third party — namely, nonparty Lennie Estipular, Harounian’s long-term employee and personal assistant (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442, 443 [1st Dept 2011]). An agency agreement, prepared by Harounian’s divorce counsel, designated Estipular as Harounian’s agent in connection with the divorce proceeding, specifically stating that Estipular’s activities were undertaken at counsel’s direction and were intended to maintain and preserve privilege.
Contrary to plaintiff’s assertion that Estipular could not have been Harounian’s agent at the meeting between him and his counsel because she was not necessary to the transmission of legal advice, Estipular was, in fact, facilitating attorney-client communications by recording notes of the meeting, because her doing so allowed Harounian to listen rather than write. Therefore, the agency exception applies, and the privilege was not waived by Estipular’s presence (see Ambac Assurance Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 ; Robert V. Straus Prods. v Pollard, 289 AD2d 130, 131 [1st Dept 2001]).
See Homapour v. Harounian, 2022 NY Slip Op 07030 (NY Dec. 13, 2022). For this reason, the court affirmed that the third party’s notes from the meeting were privileged and not subject to production to opposing counsel.
Louisiana courts have recognized that “[i]f a third party’s presence is required for the transmission of the information and the client had a reasonable expectation of confidentiality, the privilege will not be lost.” See State v. Montgomery, 499 So. 2d 709, 711 (La. Ct. App. 3 Cir. 1986). It is uncertain whether a Louisiana court would adopt the New York court’s reasoning in Hamapour as to the “necessity” of the client’s agent. On the one hand, the client does not necessarily require the presence of his agent in a meeting to transmit and receive information from the lawyer. On the other hand, as the New York Court found, the agent’s presence facilitated the lawyer-client communications because the client was able to listen while the agent recorded the notes of the meeting. The take-away: the presence of a client’s agent may subject the lawyer and the client to litigation over the waiver of the privilege protecting confidential communications. Either consider memorializing an agency agreement designating the non-party as an agent of the client or run the risk that the non-parties presence could waive the privilege.