In today’s marketplace, the way that corporations conduct business is drastically changing, and lawyers are increasingly relying on third-party consultants, such as accountants or investment bankers, to facilitate them in providing accurate legal advice to corporate clients. Despite this reliance, whether the attorney–client privilege protects the communications between an attorney and a third-party consultant is often questioned. In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter. However, both federal and state courts have since split over the proper scope of the Kovel doctrine. In particular, courts have applied both a narrow and broad interpretation of the Kovel doctrine, rendering the application of the doctrine unpredictable.
Wisconsin in particular has not yet addressed whether the attorney–client privilege should apply to third-party consultants, and if so, what the proper scope of or limitations to the privilege should be. Based upon an analysis of both federal and state courts’ application of the attorney–client privilege as well as Wisconsin’s own statutes and policies, this Comment recommends that Wisconsin follow other states and adopt the Kovel doctrine. Rather than apply a broad application, Wisconsin should adopt a narrow, but lenient, approach to the Kovel doctrine. Specifically, Wisconsin courts should analyze (1) whether there is sufficient evidence, other than the substance of the communications, to determine that the consultant was hired for the facilitation of legal advice and (2) whether the third-party consultant acts as a translator of client only information.
Attorney-Client Privilege and the Kovel Doctrine: Should Wisconsin Extend the Privilege to Communications with Third-Party Consultants?,
102 Marq. L. Rev. 605
Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss2/8