Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)

Most companies are comfortable that their interactions with outside counsel during investigations, audits and compliance assessments are covered by privilege. However, whether that protection also applies to the range of non-attorney consultants who also help attorneys with those efforts, such as forensic accountants and investigators, is less clear. The Second Circuit’s Kovel decision in 1961 extended the attorney-client privilege to third parties assisting attorneys in representing clients under certain circumstances. This two-part series discusses how companies can most successfully make use of so-called “Kovel arrangements.” This first article describes the requirements of the Kovel privilege as established by case law. The second article will detail the requisite features of a fully compliant Kovel arrangement and when they are appropriate. See also “Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations” (Jun. 26, 2013).

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