It’s a memorable scene. In Hamilton: An American Musical (and in real life), General George Washington, âoutgunned, outmanned, outnumbered, outplanned,â recognized that he was âgonna need a right-hand man.â He chose Alexander Hamilton as his aide-de-camp and, as they say, the rest is history.
But if General Washington needed to communicate with his personal lawyer, would the attorneyâclient privilege apply if Hamilton talked to the lawyer on the Generalâs behalf?
We know that communicating with a lawyer in the presence of a third-party lacks the requisite confidentiality to secure privilege protection. A familiar retort is that the privilege applies when the so-called third-party is the clientâs agent or someone needed to facilitate communications between the attorney and the actual client. But how far does that argument go?
The DNJ federal court faced this question and refused to apply the attorneyâclient privilege where a companyâs owner used a company employee to communicate with his personal attorneys. The Court held that, even though the employee was the ownerâs âright-hand man,â he was not a ânecessary intermediaryâ as required to apply the privilege. Symetra Life Ins. v. JJK 2016 Insurance Trust, 2019 WL 4931231 (DNJ Oct. 7, 2019). You may read the decision here.
Death on the Horizon
Joseph Krivulka, owner of Akrimax Pharmaceuticals, LLC, had a previously scheduled comprehensive medical examination set for August 9, 2016. There, physicians diagnosed him with metastic lung disease. He was later diagnosed with Hodgkinâs Lymphoma and died.
But on August 5, 2016âfour days before the appointmentâKrivulka signed two life insurance policies for $10M and $15M with Symetra Life Insurance, naming the JJK 2016 Insurance Trust as beneficiary. During that process, Krivulka retained counsel to set up the trust documents, but primarily delegated the lawyer-communication task to Timothy Soule, Akrimaxâs VP of Operations and Human Resources and Krivulkaâs âright-hand man.â
Krivulkaâs counsel engaged in back-and-forth communications with the right-hand man (and other employees), and Symetra sought production of those communications in a lawsuit seeking to void the policies for Krivulkaâs alleged false representations about this health.
Whatâs the Law?
The case law is not always crystal clear on the clientâagent issue in the privilege context, with many decisions assuming that the agentâs presence does not invalidate the privilege. The Symetra Court breaks from conclusory assumptions and provides a nice overview of privilege law in this fact-specific area.
Applying New Jersey law (because this was a diversity-jurisdiction case), the Court cited NJRE 504 and case law for the rule that the privilege covers communications between a client and his lawyer and a âclientâs communications made through necessary intermediaries and agents.â But the Court also looked to Section 70 of the Restatement of the Law Governing Lawyers.
The Restatement provides that the privilege applies to the clientâs communications to her lawyer, but that the client âmay appoint a third person to do so as the clientâs agent.â The Restatementâs comments explain that the privilege applies only when the putative agent âis reasonably necessary to facilitate the clientâs communication with a lawyer.â
The Restatementâs examples reveal the limiting nature of this agency theory. They include a friend of a clientâprisoner, a translator, and a clientâs secretary âregularly employed to record and transcribe business letters.â
Ruling
Employing the maxim that courts should strictly construe the privilegeâs scope, the Court found that Souleâthe right-hand manâwas not Krivulkaâs agent for privilege purposes. While Souleâs role with Krivulka was âsignificantâ and âconvenient,â it was not necessary in facilitating the lawyerâs creation of the trust.
As the Court concluded, Souleâs communications with Krivulkaâs lawyer was âone of convenience rather than necessity,â and the Trust was asking the Court âto read ânecessaryâ so broadly as to eliminate it.â
POP Analysis
In an earlier post, Momma Mia! Donât Take Your Parents to a Lawyer Meeting, I reviewed a decision rejecting the privilege when a young adult brought her parents to an initial meeting with a personal-injury lawyer. The Symetra decision poses a similar inquiry: is the third-partyâs presence or use reasonably necessary to facilitate communications?
Given the work pressures of the Revolutionary War, I suspect a hypothetical Colonial court would find that Hamilton was Washingtonâs ânecessary intermediaryâ and uphold the privilege for Hamiltonâs communications with Washingtonâs lawyer. So, when a third-party enters the client-communication picture, perhaps lawyers should ask this question:
Is this person a Hamilton?
And while thinking about it, enjoy âRight Hand Manâ from Lin-Manuel Mirandaâs Hamilton.