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Protecting the Attorney-Client Privilege While Using Third-Party Consultants

There can be no question that business and legal transactions have become increasingly multi-disciplinary and complex. Business executives and their legal counsel frequently seek guidance from a variety of external consultants, including outside accountants, financial advisors, executive benefits consultants, human resources specialists, insurance brokers, executive recruiters, and public relations advisors (especially in crisis communication situations). Can a company rely on the attorney-client privilege to protect the confidential nature of communications with these external consultants, or will the use of an external consultant constitute a waiver of privilege?

The attorney-client privilege protects communications between a client and counsel that were intended to be confidential and were kept confidential, where the communications were made to obtain or provide legal advice. In some circumstances, the attorney-client privilege may extend to non-lawyers consulted by internal corporate counsel and external counsel at law firms if the communications were made in confidence for the purpose of facilitating the attorney providing legal advice.

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