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Use Caution When Giving Legal Advice in the Presence of Consultants

April 10, 2018

By: Terry R. Bossert

Almost every significant environmental matter is addressed through a team of professionals. That team usually includes, in addition to the client representative, one or more environmental consultants and counsel. Strategy meetings during which both technical and legal strategies are discussed are common. The Pennsylvania Supreme Court is about to address the question of whether sharing legal advice with outside consultants engaged by the client results in a waiver of the attorney-client privilege or attorney work product privilege. The Superior Court has already partially addressed this question. Last summer in Bousamra v. Excela Health, 167 A.3rd 728 (Pa. Super. 2017), the Superior Court ruled that both the attorney-client privilege and the attorney work-product privilege were waived when an email from outside counsel was shared with an outside consultant. The Supreme Court has granted allocator (Bousamra v. Excela Health, 5 WAP 2018) and the initial briefs in the Supreme Court are due this week.

Although the Bousamra case does not involve environmental consultants, the principles articulated by the Superior Court are clearly applicable. Briefly, outside counsel for a hospital sent an email providing legal advice to in-house counsel regarding a dispute with some doctors. The hospital’s in-house counsel shared that email with a public relations consultant hired by the hospital. The Court of Common Pleas and Superior Court both ruled that once the email was shared with the public relations consultant, the hospital had waived both the attorney-client and work product privileges. 

First addressing the attorney-client privilege, the Superior Court noted that while conversations in the presence of a third party usually waive that privilege, conversations between counsel and a client in the presence of a third party may still be privileged if the third party is employed to facilitate legal advice being rendered by the attorney. (See United States v. Kovel,  296 F.2d 918 (2nd Cir. 1961)). The court noted that the attorney-client privilege does extend to the agent of an attorney who assists in providing legal advice to the client. However, in this case, the consultant was hired by the hospital, and thus was not the attorney’s agent. The court further noted that the question of whether the privilege also extended to a client’s agent had never been addressed in Pennsylvania. However, the Superior Court did not address that question, rather holding that the public relations consultant was not involved in assisting the lawyer in providing legal advice, regardless by whom he was hired, and therefore, the privilege did not apply. 

Applying the Superior Court’s analysis to the very common scenario regarding environmental matters, one can see the complications presented by the Superior Court’s decision and the need for the Supreme Court to clarify the scope of these privileges. For example, if a client hires an environmental consultant to help it prepare a complex permit application or to perform a site assessment and develop a remediation plan, that initial engagement is not designed to assist counsel. However, legal issues may arise later and interpretations of the law may help guide the consultant’s future work. Pursuant to the Superior Court’s holding, advice given to the client in the presence of that consultant or sharing the attorney’s legal advice rendered in an email would result in a waiver of the attorney-client privilege. The environmental consultant was not hired as an agent for the attorney (as is common for litigation experts) and was not initially hired to assist in providing legal advice. This suggests that it may be prudent to have counsel retain the environmental consultant.

Since the Superior Court declined to address the issue of whether agents of the client enjoy the same privilege as an agent of the attorney, it is not clear whether, in cases where the client engages the consultant directly, altering the consultant’s engagement to make specific reference to providing assistance to counsel would suffice to establish privilege. However, that may be prudent as well.

The court also found that when the client shared outside counsel’s email with the public relations consultant, the work-product privilege was waived as well. The court noted that counsel did not provide the email to the public relations consultant to help counsel prepare for litigation or otherwise. Rather the client sent the information to the outside consultant for reasons other than trial preparation. 

Certainly, not all conversations among a client, an environmental consultant, and counsel need to be protected by the attorney-client privilege. However, until the Supreme Court gives a definitive answer, the engagement of a consultant, and the scope and content of discussions between the client and its counsel and consultant, should be carefully evaluated.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
 

About the Author:

Terry Bossert

Terry R. Bossert is a Principal in the Firm's Environmental and Energy & Utilities Practice Groups and Co-Chair of the Firm's Shale Resource Practice Group. He counsels clients on environmental regulatory matters and compliance programs, represents them in related litigation brought by environmental regulators, and administrative tribunals and courts.  Learn More.