Employees, Agents And The Attorney/Client Privilege

Even though attorney-client privilege is the oldest of evidentiary privileges, many privilege issues remain unresolved, particularly as they relate to in-house representation. Recently two state supreme court decisions have provided some clarification. In Texas, the high court held that privilege does apply in cases where a company’s own employee is testifying as an expert witness. Opposing counsel did not have the right to see pre-testimony email exchanges between company attorneys and that employee-expert. Addressing another, and likely a more familiar scenario, the state supreme court in Tennessee adopted a so-called “functional equivalent test” to apply when determining whether there is privilege when the attorney is communicating with a third party that the company has retained for some business purpose. Privilege applies, the court said, in cases where the third party is the functional equivalent of a company employee.