The answer: it depends. Whether privilege applies turns on the consultant’s role and the legal context. Below is a brief summary, with links for those interested in a deeper dive, followed by some practical tips.
General Rule
Attorney-client privilege protects confidential communications between a lawyer and client made for legal advice. Involving third parties typically waives privilege, unless the third party’s participation is essential to facilitate the client’s legal representation.
The Kovel Doctrine
Courts have recognized the extension of privilege to communications with the attorney’s staff, trial consultants, and professionals engaged to support the client’s legal representation. This exception, known as the Kovel doctrine has been applied both narrowly and more broadly, [1] but in every case the consultant’s role must directly support the provision of legal advice.[2] The Kovel doctrine has been applied periodically by Ohio courts.[3]
The Functional Equivalent Test
Courts may also protect communications when a consultant acts as the “functional equivalent” of an employee. In In re Bieter Co.,[4] the court extended privilege to a consultant who worked closely with company principals, participated in the transaction that was the subject of litigation, and possessed unique knowledge critical to the litigation. Similarly, in Horton v. U.S.,[5] the court required a “significant relationship” between the nonemployee and the corporation’s role in the matter at issue.
Current Debates
Some scholars question whether the functional-equivalent analysis fits today’s gig economy. Professor Giesel, in Penn State Law Review article “The Entity Attorney-Client Privilege Meets the Twenty-First Century: Rethinking Functional Equivalent Analysis in the Time of a Nonemployee Workforce”[6] suggests that courts should focus less on formal employment factors and more on the consultant’s substantive role and knowledge. Other legal scholars lament lack of clarity and uniformity across jurisdictions. Attorneys Levy and Ellinwood concede, “great uncertainty exists as to the applicability of the privilege to non-attorney consultants. The precise boundaries are hard to delineate clearly and may not be uniform across jurisdictions.”[7]
Practical Pointers
Attorneys can help strengthen privilege protections with third party consultants by:
- Clearly documenting the purpose of the consultant’s involvement in the legal representation.
- Ensuring that counsel, not the client, engages the consultant to assist in providing legal advice.
- Limiting communications to what is necessary for the consultant’s role.
- Remembering that work product protection applies only to materials prepared in anticipation of litigation.
Final Note
Privilege questions involving consultants are highly fact-specific, considering the nature of the relationship, the purpose and timing of the communication, and whether confidentiality is reasonably maintained to the necessary party. Attorneys should assess carefully and thoroughly discuss the risks with their clients.
If you’re an OBLIC policyholder, consider taking advantage of a complimentary ethics consultation to analyze whether privilege extends to a particular consultant. Don’t hesitate to reach out through the Loss Prevention Hotline.
| Gretchen K. Mote, Esq. Director of Loss Prevention Ohio Bar Liability Insurance Co. Direct: 614.572.0620 [email protected] |
Merisa K. Bowers, Esq. Loss Prevention & Outreach Counsel Ohio Bar Liability Insurance Co. Direct: 614.859.2978 [email protected] |
[1] J Paul Allen, Jessica Knox, and R Harper Heckman, “Attorney-Client Privilege & Interactions with Third-Party Consultants,” published in the ABA Forum on Construction Law (July 16, 2025). Last accessed August 29, 2025.
[2] U.S. v. Kovel, 296 F.2d 918 (2nd Cir. 1961).
[3] See, e.g., 12312 Mayfield Rd., LLC v. High & Low Little Italy, LLC, 2024 Ohio 2717 (8th Dist., cert. denied).
[4] 16 F.3d 929 (8th Cir. 1994)
[5] 204 F.R.D. 670 (D. Colo. 2002).
[6] Grace M. Giesel, The Entity Attorney-Client Privilege Meets the Twenty-First Century: Rethinking Functional Equivalent Analysis in the Time of a Nonemployee Workforce, 126:2 Penn St. L. Rev. 466 (2022).
[7] Michael N. Levy and Todd A. Ellinwood, The Applicability of the Attorney-Client Privilege to Non-Attorney Members of the Legal Team, published at NACDL.org (2005). Last accessed 8/29/25.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.
