Preserving Privilege and Maintaining Client Confidences When Dealing With Third-Party Consultants During a Crisis

October 11, 2016

By: Devika Kewalramani, Jason Canales, and Robert D. Argen

About the Article: In times of crisis, such as a data breach, clients often seek urgent legal advice from outside counsel, expecting such attorney-client communications to be protected as privileged and confidential. But when clients or counsel turn to third-party consultants for help in a data breach action, e.g., forensic investigators or technology experts, are those communications privileged? Given the critical role of outside counsel in maintaining privilege and client confidentiality, this article analyzes the circumstances where the privilege doctrine in New York has been extended to apply to communications with certain third-party consultants but not to others, and discusses what practical steps outside counsel should consider taking in order to guard against waiver of privilege when a client crisis occurs.

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