Are lawyer conversations with third parties relevant to a case privileged?

Question

Are lawyer conversations with third parties relevant to a case privileged?

For example, imagine an attorney is defending a person against a criminal charge. The attorney interviews his client's roommate alone concerning matters relevant to the case and that conversation is recorded with consent of both parties. Later, the police interview the roommate and the roommate tells the police that he had a recorded conversation with the defendant's attorney. The police tell this to the the prosecutor. Can the prosecutor then subpoena the recording?

Here is another scenario: an attorney has a conversation with an expert witness pursuant to a criminal case before formally naming that expert witness as a witness (for example, before the trial starts or before his client has been indicted). Can that conversation be subpoened by the prosecution?

Answer 1

In the United States, neither the recording of the lawyer's conversation with a third party nor the lawyer's communications with an expert witness would generally be considered privileged.

But that doesn't mean that the prosecutor can subpoena those records. The parties' rights to discovery of each other's evidence is spelled out in Fed. R. Crim. P. 16. That rule generally protects the documents you're talking about as trial-preparation materials:

Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:

(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or

(B) a statement made to the defendant, or the defendant's attorney or agent, by:

 (i) the defendant;

 (ii) a government or defense witness; or

 (iii) a prospective government or defense witness.

I believe you would reach the same outcome under most states' rules of criminal procedure, as well.

Answer 2

Are lawyer conversations with third parties relevant to a case privileged?

No. I'm assuming you ask about jurisdictions in the U.S. The attorney-client privilege does not extend to third parties.

In the case of moral person (i.e., to distinguish from a physical person) the privilege covers communications employees and agents only to the extent that their involvement was strictly necessary for the matter(s) at issue. That is because employees or agents are considered part of the same moral person regarding the events that led to that litigation. Similarly, communications that are internal to the law office or lawyer & his staff for the strict purposes of that litigation are covered by the privilege.