Privilege and Work-Product Considerations for Using an Expert as a Consultant
By Shane Henry and Aaron Bundy
Lawyers come from many different backgrounds. Some of us are engineers; others artists. Even for those of us with highly-concentrated practices, few, if any of us, have the control or ability to ensure that our clients and their needs perfectly align with our own training and experience. Experts are often required for preparation in both criminal and civil trials.1 For example, in Ake v. Oklahoma,2 the United States Supreme Court held, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” (Emphasis added).
The court in Ake specified that the mere “likelihood” of a sanity issue was sufficient for the defense to have access to a psychiatrist for consultation and examination purposes.3 In civil cases, our clients, or the opposing party, may be subject to a physical or mental examination due to the nature of claims made.4 From time to time, we may even be hired by a non-English speaking client — a problem for those of us who aren’t bilingual. As a result, we must frequently engage other professionals to assist us with communicating with clients and understanding the issues. Any time a third party is involved in our case, we must consider the potential impact on our duty of confidentiality.5
ATTORNEY-CLIENT PRIVILEGE AND THIRD-PARTY EXPERTS — THE GENERAL RULE
“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.6 Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.”7 “[T]he [attorney-client] privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”8
Generally, the presence of an unnecessary third party de-stroys the attorney-client privilege. However, the cases leave the door open for the presence of nonlawyer necessaries. “As a general rule, if a client chooses to make or to receive a communication to or from his attorney in the open presence of unnecessary third persons, the communication ceases to be confidential and is not entitled to the protection afforded by the rule of confidentiality.”9 The rule stated in Chandler is true even if the third party did not hear the communication.10
In short, the presence of third persons — be they relatives or friends of the client — who are not essential to the transmission of information or whose presence is not reasonably necessary for the protection of the client’s interests, will belie the necessary element of confidentiality and vitiate the claim to an attorney-client privilege. Where there is no confidence reposed, no privilege can be asserted.11
THE KOVEL DOCTRINE AND THE EXCEPTION TO THE THIRD-PARTY RULE
Who then may be present, other than the client and the lawyer, without destroying the privilege? A case from the United States Court of Appeals 2nd Circuit, United States v. Kovel,12 concerning extension of the attorney-client privilege to nonlawyers, has such excellent analysis and is so important that its holding has been referred to as, “The Kovel Doctrine.” Louis Kovel was a former IRS agent with accounting expertise who worked for a law firm that specialized in tax law.13 He was subpoenaed to testify before a grand jury concerning one of the firm’s clients. Kovel refused to answer material questions about the client on the grounds of attorney-client privilege.14 After several hearings where he refused to answer, other than citing the privilege, he was found by the trial judge to be in direct contempt of court and sentenced to a year of imprisonment, with no bail.15
The appellate court’s analysis of application of the attorney-client privilege relied heavily on Wigmore’s treatise on Evidence.16 Determining that the attorney-client privilege may indeed extend to nonlawyers, the appellate court continued,
What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.17
The appellate court also used the analogy of a lawyer with a non-English speaking client, stating, “This analogy of the client speaking a foreign language is by no means irrelevant to the appeal at hand. Accounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases.”18 So long as legal advice from the lawyer is being sought, the lawyer need not even be present at the meeting.19 Conversely, “If what is sought is not legal advice but only accounting service, as in Olender v. United States, 210 F.2d 795, 805-806 (9 Cir. 1954), see Reisman v. Caplin, 61-2 U.S. T.C. ¶9673 (1961), or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.”20
Finally, the appellate court discussed Kovel’s refusal to answer questions under the circumstances: “[A] witness claiming the attorney-client privilege may not refuse to disclose to the judge the circumstances into which the judge must inquire in order to rule on the claim[.]”21 The court held, “[I]n order to preserve Kovel’s position on appeal counsel should have proffered the necessary evidence and, if the judge would not receive it, should have made an offer of proof, along the lines prescribed in civil cases by F.R.Civ.Proc. 43(c), 28 U.S.C.”22 Remanding the case for more information, the appellate court concluded, “[T]he proper practice is for the judge to conduct his preliminary inquiry into the existence of the privilege with the jury excused[.]23
The Kovel Doctrine is an attorney-client privilege concept. Cases subsequent to Kovel tend to treat the doctrine narrowly. See, e.g., the federal magistrate’s discovery memorandum and order of March 27, 2015, in Scott v. Chipotle Mexican Grill, Inc., Dist. Court, SD New York 2014. Many of the cases cited in Scott emphasize the Kovel excerpt quoted above: “What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.” The third-party’s role should be to enhance the communication to and with the lawyer, and the ultimate advice or opinion must come from the lawyer, not the third party. Distinction must also be made between the attorney-client privilege and the work product doctrine. The magistrate expressly noted in Scott, supra, p. 4, that a work product claim had not been asserted in that case by the responding party. The attorney-client privilege and work product are distinct concepts, as discussed below.
OKLAHOMA’S WORK PRODUCT DOCTRINE
The seminal case on the work product doctrine in Oklahoma is Ellison v. Gray, 1985 OK 35, 702 P.2d 360. Following are three nonsequential paragraphs from Ellison:
¶10 The work product doctrine was established in Hickman v. Taylor, 329 U.S. 495, 510-17, 67 S.Ct. 385, 393-96, 91 L.Ed. 451, 462-65 (1947), when the United States Supreme Court recognized that an attorney simultaneously must protect the rightful interest of his/her client, while functioning with some degree of privacy free from unnecessary intrusions by adversary counsel. Without this protection, attorneys would hesitate to note their impressions because of the possibility of discovery by opposing counsel. In Hickman, the court found that some documents were covered by a qualified immunity from discovery. The court held that while certain private memoranda, written statements of witnesses, and mental impressions or personal recollections, prepared or formed by an attorney in the course of professional duties for use in prosecuting the client’s case and contained in the lawyer’s files or mind were not protected by the attorney-client privilege, they were protected from discovery as the work product of the attorney. The court held that in the absence of a strong showing of necessity, or a vigorous indication or claim that denial of discovery would unduly prejudice the preparation of the inquiring party’s case, cause undue hardship, or result in injustice, discovery must be denied. Hickman does not proscribe absolutely the discovery of opinion work product — it allows discovery only in rare instances.
¶7 During the course of a particular representation, the attorney draws from various mental impressions consisting of conclusions, legal theories, and opinions, evaluations of strength and weakness, and inferences drawn from interviews of witnesses. The sum total of these impressions, when reduced to writing, is the attorney’s work product. Only the distilled product which is communicated to the client, or any communication received by the client from counsel which is intermixed with work product, is discoverable. Ordinary work product consists of factual information garnered by counsel acting in a professional capacity in anticipation of litigation. It includes facts gathered from the parties and witnesses, and materials discovered through investigations of counsel or his/her agents. Although ordinary work product is cloaked with a qualified immunity, it may be discovered upon a showing of the inability to secure the substantial equivalent of the materials without undue hardship. The opinion work product area is carved out to protect the right of counsel to privacy in the analysis and preparation of the client’s case. Opinion work product includes the lawyer’s trial strategies, theories, and inferences drawn from the research and investigative efforts of counsel. Historically, the thoughts of an attorney have been free from invasion, and the impressions, theories, trial tactics, and opinions of counsel have been sheltered from disclosure. Opinion work product enjoys a virtual immunity from discovery, and it may be discovered only under extraordinary circumstances.
¶8 Although the two are closely related, an attorney’s work product is not synonymous with the attorney-client privilege. The work product rule remains closely identified with the attorney-client privilege because work product represents efforts expended by the attorney during the course of the professional relationship. The attorney client privilege belongs to the client and must be invoked by the client. The attorney’s work product exemption may be claimed by the attorney and not by the client; information which is not protected from discovery by the attorney-client privilege may nonetheless be exempt as work product.
Oklahoma’s work-product doctrine is statutorily found at Okla. Stat. tit. 12 §3226. Okla. Stat. tit. 12 §3226(B)(3) states,
3. TRIAL PREPARATION: MATERIALS.
a. Unless as provided by paragraph 4 of this subsection, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative, including the other party’s attorney, consultant, surety, indemnitor, insurer or agent. Subject to paragraph 4 of this subsection, such materials may be discovered if:
(1) they are otherwise discoverable under paragraph 1 of this subsection, and
(2) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
b. If the court orders discovery of such materials, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney or other representative concerning the litigation.
c. A party or other person may, upon request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and the provisions of paragraph 4 of subsection A of Section 3237 of this title apply to the award of expenses. A previous statement is either:
(1) a written statement that the person has signed or otherwise adopted or approved, or
(2) a contemporaneous stenographic, mechanical, electrical, or other recording, or a transcription thereof, which recites substantially verbatim the person’s oral statement.
Okla. Stat. tit. 12 §3226(B)(4)(c), concerning experts, provides the following protection:
4. TRIAL PREPARATION: EXPERTS.
c. A party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial, except as provided in Section 3235 of this title or upon a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
We can hire experts to help us communicate with our clients under the protection of the attorney-client privilege through the Kovel Doctrine. We can consult with experts to assist us in case theory development and trial preparation with the protection of the work product doctrine. The attorney must work carefully and closely with any expert engaged as a consultant in anticipation of litigation and for trial preparation. The purpose and role of the expert should be identified and agreed-to from the onset, especially concerning whether the expert will or will not testify at trial. The role of the expert must be communicated to the client from the onset. If the consulting expert renders an opinion to the client, the expert’s opinion will almost certainly not be protected by the attorney-client privilege. However, an expert opinion or report given in anticipation of litigation and for trial preparation may be protected from disclosure by the work product doctrine.
1. Ake can be read to require the appointment of an expert for consultation and preparation of cross-examination of government witnesses, even if the expert will never testify in the matter. See the Brief for American Psychological Association and Oklahoma Psychological Association as Amici Curiae Supporting Petitioner, pp. 26-30, Ake, supra, Web. 6 Sept. 2015. <http://www.apa.org/about/offices/ogc/amicus/ake.pdf>.
2. 470 U.S. 68, 83 (1985).
3. Id. at 82-83.
4. Okla. Stat. tit. 12 §3235.
5. Rule 1.6 of Oklahoma Rules of Professional Conduct.
6. 8 J. Wigmore, Evidence §2290 (McNaughton rev. 1961).
7. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
8. Id. at 390 (emphasis added).
9. Chandler v. Denton, 1987 OK 38, ¶21, 741 P.2d 855, 865 (emphasis in original).
10. Id. at 865-866.
11. Id. at 866.
12. 296 F.2d 918.
13. Id. at. 919.
15. Id. at 920.
16. Kovel, supra, at 921.
17. Id. at 922.
21. Id. at 924.
22. Id. at 923.
23. Id. at 924. Also see Chandler, supra, at ¶20, 865: “In order to establish the privilege, it must be shown that the status occupied by the parties was that of attorney and client and that their communications were of a confidential nature. Whether a communication is privileged from disclosure is for the trial judge to decide in light of a preliminary inquiry into the existence and validity of the privilege. The burden to establish the privileged status of testimony sought to be excluded rests on the party asserting it. The trial judge’s ruling is conclusive in the absence of an abused discretion.”
ABOUT THE AUTHORS
Aaron Bundy is a lawyer with the Tulsa law firm of Fry & Elder. His practice areas include high-conflict family law as well as criminal defense and appellate work. He has served as a guardian ad litem and attorney for minor children in contested custody disputes. He is a frequent CLE presenter on trial practice and other trial-related issues. He is a 2006 graduate of the TU College of Law.
Tulsa lawyer Shane Henry’s practice is focused on trial advocacy in Oklahoma and Texas. He practices with the firm of Fry & Elder and is a past chair of the OBA Family Law Section. He has presented numerous CLE courses related to family law and was a co-founder, teacher and presenter at the inaugural OBA Family Law Section Trial Advocacy Institute. He is a 2006 graduate of the TU College of Law.
Originally published in the Oklahoma Bar Journal-- Dec. 19, 2015-- Vol. 86, No. 33