Privilege Issues Pop Up with “Handlers”

Therefore, it behooves the attorney to explain to the client that if he or she insists that communications go through a handler, the important privilege may be waived.  This is because the client, knowing of the presence of the third party, could not have possessed a reasonable expectation that the communications would remain only between the client and the attorney.  What then can be done?

One option is to argue that the handler is a consultant.  Illinois Supreme Court Rule 201(b)(3) protects the disclosure of the identity of consultants and their work product except under exceptional circumstances.  A consultant is a person who has been retained or specifically employed in anticipation of litigation or preparation for trial but who is not to be called at trial.  Whether one can successfully argue that the athlete/entertainer’s handler is a consultant or whether or not exceptional circumstances exist to prevent disclosure of information are both open to interpretation.  As a result, there could be much debate and increased fees about what qualifies as an exceptional circumstance and whether a handler should be considered a consultant.

Due to the uncertainty as to whether or not the handler would be afforded the protections of a consultant, best practice is to develop a policy of communication when representing athletes or entertainers.  Despite the large entourage of people that typically surround the athlete or entertainer, the attorney must insist on dealing directly with the client when highly sensitive information must be discussed.  For all other communication, the attorney must limit discussion with only one “handler” of the client.  This will give greater strength to the argument that the client possessed a reasonable expectation that the communications were privileged.  Ideally, the handler would be the client’s direct agent.  Finally, the attorney should inform the client at the initial interview that privilege may be waived when a handler is the conduit of information.

Taking these precautions will help keep athletes’ and entertainers’ highly sensitive family law matters under wraps.  Choosing to deal with the clients’ handler-of-the-month comes at high stakes - not just to the celebrity, but also to the attorney.  If information is leaked, or obtained via a third party subpoena, the attorney may find himself thinking, “honey, honey I know, that you’re lettin’ me go . . . heard it through the grapevine.”