Introduction

As recent high-profile litigation, government investigations, and large-scale data-security incidents have shown, organizations are often thrust into crisis mode, requiring rapid responses and close collaboration with third parties, such as public relations consultants, crisis management teams, and forensic accountants and investigators, in order to address the crisis holistically. While these third-party partners are vital in steering an organization through a difficult period, it is imperative to take steps to protect communications with these external partners and safeguard the confidentiality of sensitive and even privileged information.

Generally, the attorney-client privilege protects confidential communications requesting or receiving legal advice between an attorney and their client. The confidential nature of these communications is important, and the privilege can be jeopardized if third parties are included. However, there are important exceptions to the general rule. First, the “common interest” (or “joint defense”) doctrine extends the attorney-client privilege to communications between attorneys and third parties with a shared legal interest (such as co-counsel in an active lawsuit), but it requires active collaboration on a common legal strategy or issue, not just business strategies with incidental legal concerns. Second, privilege can also extend to third-party consultants (such as private investigators, accountants, public relations professionals, etc.), as long as their involvement is essential to aiding the understanding between legal counsel and the client.