For communications to be protected by the attorney-client privilege, they must be confidential and that confidentiality must be maintained. Generally, this means that attorney-client communications should neither be made in the presence of third parties nor be subsequently distributed to third parties.
 

In National Educational Training Group, Inc. v. Skillsoft Corp., 1999 U.S. Dist. LEXIS 8680 (S.D. N.Y. June 10, 1999) the court held that the privilege was waived when a member of the board of directors brought a third party into a board meeting to take notes for him. The court concluded that the presence of this note-taker waived the attorney-client privilege protection for all communications overheard by her.
 

"The district court imposed a restrictive necessity standard. For the privilege to be preserved, the presence of third parties must be more than just useful and convenient: instead the third party's involvement must be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications." Id. at *10.
 

How does this ruling effect intra-corporate communications? If an corporate officer obtains legal advice from an attorney, can the officer's administrative assistants, who will oversee the implementation of that advice, be present during the consultations without destroying confidentiality? Can the advice be disseminated to lower level employees whose conduct will be affected by it, without waiving the privilege? The Skillsoft decision should not affect these activities.
The necessity standard, which can be unfairly restrictive, see P.R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, Sec. 4:2 (West Group 2d ed. 1999), tends to be dredged up by courts when individuals outside of the normal business patterns are brought into a circle of confidentiality in which they generally are not included. It also may be employed when the court is suspicious of the reason for allowing an individual to be privy to the communications. For example, when a Japanese business executive who spoke English, brought his retired predecessor with him to meetings with corporate counsel to serve as a translator, the presence of the former executive was held to have waived the privilege protection. Advanced Technology Assocs. v. Herley Indus., 1996 WL 711018 (E.D. Pa. Dec. 5, 1996).
 

The decisions in Skillsoft and Advanced Technology should not jeopardize the attorney-client privilege protection for either (1) privileged communications that a corporation regularly shares with the employees at issue or (2) confidential communications exposed to clerical and administrative staff like secretaries and other aides. However, caution must be exercised when outsiders are brought into the attorney-client privilege picture. If you can use a tape recorder, don't use a stenographer. If you must use a translator, employ a trained professional. It also is essential to understand that a third party's presence is not permissible simply because she regularly occupies a position of trust and confidence. Her regular duties must relate to the confidences being shared. Otherwise the privilege is waived by the breach, unless a particular need for her presence can be delineated.