Under Federal Rule of Evidence (FRE or Rule) 801(d)(2), an opposing party’s out-of-court statements may be admissible. Such party admissions are often consequential to prove an element of a claim or defense or to call into question a witness’s credibility.
One issue that can arise, however, is whether statements by a party’s outside counsel fall within this rule. There is a patchwork of court rulings on this issue. Due to the unique nature of the attorney-client privilege, courts have generally urged caution when the challenged statement is made by a party’s attorney. Nonetheless, in some jurisdictions, attorney statements have been admitted under FRE 801(d)(2).
This article summarizes noteworthy decisions where courts have examined the admissibility of outside counsel’s statements under Rule 801(d)(2).