Accountants and the attorney-client privilege.
Accounting concepts are a foreign language to some lawyers in almost all cases and to almost all lawyers in some cases." As financial litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. becomes more complex, this often-quoted statement helps explain why attorneys sometimes need to use the services of accountants. Litigation support has become so much a part of the accounting profession that the American Institute of CPAs Code of Professional Conduct defines the practice of public accounting as including "litigation support services support services Psychology Non-health care-related ancillary services–eg, transportation, financial aid, support groups, homemaker services, respite services, and other services ." For many lawyers, the need to consult a CPA (Computer Press Association, Landing, NJ) An earlier membership organization founded in 1983 that promoted excellence in computer journalism. Its annual awards honored outstanding examples in print, broadcast and electronic media. The CPA disbanded in 2000. is particularly acute when they work with financial statements, determine a client's net worth, try to understand a business' books and records or handle tax matters.
An issue raised about the attorney-accountant relationship is whether use of an accountant's services will jeopardize jeop·ard·ize
tr.v. jeop·ard·ized, jeop·ard·iz·ing, jeop·ard·izes
To expose to loss or injury; imperil. See Synonyms at endanger. communications and work otherwise protected by the attorney--client privilege. This issue is grounded in the rejection of an accountant-client privilege Physician-Patient privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant-client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges. by both common and federal law as well as the possibility that such communications may result in the waiver The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished.
The term waiver is used in many legal contexts. of an attorney-client privilege In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. (see Berkowitz, 355 ESupp. 897, affd 488 E2d 1235, and Sidney Samuels, 155 F.R.D. 195 [N.D. Cal. (1994)]). From an accountant's perspective, the inability to protect communications and work product from disclosure threatens client candor can·dor
1. Frankness or sincerity of expression; openness.
2. Freedom from prejudice; impartiality.
[Middle English, from Old French, from Latin, from and the CPA's ability to deliver quality services.
Despite the rejection of a federal accountant-client privilege, accountant-related communications still may be shielded from disclosure when an accountant acts as an agent for an attorney providing legal services legal services n. the work performed by a lawyer for a client. (Judson, 322 E2d 460 [9th Cir. (1963)]). Extending the attorney-client privilege to accountants in this way is intended to enhance open and candid can·did
1. Free from prejudice; impartial.
2. Characterized by openness and sincerity of expression; unreservedly straightforward: In private, I gave them my candid opinion. communications and to enable clients to obtain sound legal advice. Recognition that the attorney-client privilege may apply to accountant communications and work product is evident in both the Internal Revenue Manual and Treasury Circular 230. Both say essentially that an accountant need not reveal information he or she in good faith reasonably believes to be privileged.
This article examines the possible extension of attorney-client privilege to accountants, and some related planning considerations. Knowing when to raise privilege is vital to CPAs not only to serve a client's best interests, but also to avoid unnecessary legal liability.
THE LANDMARK KOVEL DECISION
In United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. v. Kovel (296 F. 2d 918 [2d Cir. (1961)]), the Second Circuit Court of Appeals extended the attorney-client privilege to communications between a client and someone an attorney retains to provide accounting-related services. The case concerned Kovel, a former Internal Revenue Service agent who had accounting skills.
A law firm had hired Kovel to help advise its clients. He met with a client who was under grand jury investigation and received a personal financial statement from the client, along with a letter indicating its's purpose. The grand jury subpoenaed Kovel, who refused to answer questions about his meetings with the client and the effect of certain transactions. As a result, he was held in contempt of court and sentenced to one year in prison.
The matter was appealed to the Second Circuit, where the contempt decision was reversed. Judge Friendly wrote that just as other parties have been recognized as necessary to providing legal services-secretaries, clerks and messengers--so should accountants. Consequently, when an attorney retains an accountant to provide services that enhance the legal advice being provided, the attorney-client privilege extends to the accountant.
As a result of Kovel, a case for applying attorney-client privilege to accountants can be made when
* An attorney-client relationship exists.
* An accountant is retained by the attorney.
* The accountant renders services that abet To encourage or incite another to commit a crime. This word is usually applied to aiding in the commission of a crime. To abet another to commit a murder is to command, procure, counsel, encourage, induce, or assist. the provision of legal services.
* The parties do not waive To intentionally or voluntarily relinquish a known right or engage in conduct warranting an inference that a right has been surrendered.
For example, an individual is said to waive the right to bring a tort action when he or she renounces the remedy provided by law for such the privilege.
MULLEN OFFERS FURTHER INSIGHT
Mullen and Company (766 F. Supp. 620 [D. Ct. Mass. (1991)]) is instructive in·struc·tive
Conveying knowledge or information; enlightening.
in·structive·ly adv. for CPAs because it addresses the question of whether attorney-client privilege applies to communications between a client and someone who is both an attorney and an accountant. The issue was raised by a client of Mullen, which is an accounting firm. The client asserted that two of the three accountants who worked for Mullen were licensed attorneys and the services they sought were legal in nature.
According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the court, for privilege to apply an attorney-client relationship had to exist. Important factors in making this determination--identified by the court--include the following:
* Did the client seek legal advice from Mullen and Company?
* Did the client have other outside counsel?
* Were the attorneys of Mullen licensed in the state?
* Was their practice of law ethical and legal?
* Did only the attorneys in Mullen provide services?
* Was the nonattorney accountant subordinate to the attorneys?
U.S. SUPREME COURT STANDARD 503
The law recognizes attorney-client privilege for communications between a client's employees and the client's attorney (or attorney's agent) when the communications facilitate the provision of legal services (Upjohn, 49 U.S. 383 ). As a result, privilege may be used for inhouse accountant-attorney communications. The potential application of attorney-client privilege can extend to an even broader array of people having relationships with an attorney's client, as is evident in U.S. Supreme Court Standard 503 (which while not adopted in the federal rules of evidence The Federal Rules of Evidence generally govern civil and criminal proceedings in the courts of the United States and proceedings before U.S. Bankruptcy judges and U.S. magistrates, to the extent and with the exceptions stated in the rules. Promulgated by the U.S. , has largely been relied upon) and the test pronounced by the Eighth Circuit Court of Appeals in Diversifted Industries Inc. (577 E2d 596 [8th Cir. (1977)]).
According to the Diversified diversified (di·verˑ·s standard, the attorney-client privilege applies to an employee's communications if
* The communication was made to get legal advice.
* The employee making the communication did so at the direction of his or her corporate superior.
* The superior made the request so the corporation could get legal advice.
* The subject of the communication is within the scope of the employee's corporate duties.
* The communication was not shared with anyone other than those who, because of the corporate structure, needed to know its contents.
In McCaugherty (132 F.R.D. 234 [N.D. Cal. (1990)]), the District Court for the Northern District of California, although not applying the privilege on other grounds, said it did not see any need to distinguish between employees and those who acted as the functional equivalent of employees. Interpreting the standard in this way would make the privilege potentially applicable to accountants who serve as other than employees.
More recently, in In re Bieter Co. (16 E3d 929 [8th Cir. (1994)]) the Eighth Circuit Court of Appeals upheld application of the attorney-client privilege to communications between an attorney and an independent contractor A person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another's control except for what is specified in a mutually binding agreement for a specific job. who was a real estate consultant the client hired to provide guidance on the development of land that became the subject of a legal dispute. The court noted that, from the project's outset, the consultant was intimately involved with the client's attempt to achieve its objective. The consultant also served as the client's representative in meetings with potential tenants and local officials and was relied on for his expertise much like one would rely on an outside accountant to establish proper accounting and tax practices. In the court's eyes, upholding privilege under the circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact.
2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or would encourage a free flow of relevant information to the client's legal counsel, where it was needed most.
In finding privilege applicable under the Diversified standard, the court noted that the burden of proof is on the party claiming the privilege to establish that all pertinent PERTINENT, evidence. Those facts which tend to prove the allegations of the party offering them, are called pertinent; those which have no such tendency are called impertinent, 8 Toull. n. 22. By pertinent is also meant that which belongs. Willes, 319. requirements have been met.
The Bieter decision is of great significance to accountants. By analogy analogy, in biology, the similarities in function, but differences in evolutionary origin, of body structures in different organisms. For example, the wing of a bird is analogous to the wing of an insect, since both are used for flight. , Bieter extends attorney-client privilege to certain communications and work product of accountants when
* The accountants serve a vital, substantial and continuous role in the client's operations and act substantially like an employee.
* The communications or work product furthers the provision of legal services.
Not all communications between an attorney and accountant are privileged. There are two common grounds This article or section needs sources or references that appear in reliable, third-party publications. Alone, primary sources and sources affiliated with the subject of this article are not sufficient for an accurate encyclopedia article. for denying privilege
* When it is believed to have been waived.
* When the accountant's services are not to be considered sufficiently related to the provision of legal services.
Waiver of privilege. Waiver can result from disclosure intentionally in·ten·tion·al
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.
2. Having to do with intention. or inadvertently--to a third party not considered sufficiently involved in providing legal services. Insight into the breadth of factors resulting in a waiver is provided by Cote (456 E2d 142 [8th Cir. (1972)]).
Cote involved a taxpayer who had used a particular CPA for several years. On learning the taxpayer would be subject to an IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. examination, the CPA referred the client to an attorney. In turn, the attorney hired the CPA to audit the taxpayer's net worth. As a result of the audit, the client filed an amended return Amended Return
A return filed in order to make corrections to a tax return from a previous year. It can be used to correct errors and claim a more advantageous filing.
An amended return is filed using Form 1040X. showing an increase in his income and tax over that originally reported. No explanation was provided. The IRS issued a summons summons: see procedure.
In law, written notification that one is required to appear in court. In civil (noncriminal) cases, it notifies a defendant that he or she must appear and defend (e.g. to the CPA, who claimed no response was necessary due to privilege. The matter was heard by the Eighth Circuit which found filing the amended return involved communicating part of the information sought and as such constituted a waiver of privilege.
Not related to legal services. The other common ground for denying privilege is that the accountant's services are not sufficiently related to the legal services rendered. Such denial is particularly evident when
* The accountant's services were performed before the client engaged the attorney, casting doubt about whether retaining the attorney was intended to protect the accountant's prior communication or work.
* The accountant's services were in the nature of tax return preparation or an audit.
The instance of individuals licensed as both attorneys and accountants who claim privilege raises additional questions about the nature of the services rendered. Merely alleging that one did work as an attorney is insufficient to protect the communications or work product when the service appears to be more in the nature of accounting work. The courts generally have classified tax return preparation as accounting work. Different conclusions have been reached about other accounting work, such as an examination of books, journals or a net worth statement related to the rendering of legal services. More recently in Bornstein (977 E2d 112 [4th Cit. (1992)]), a court suggested that when an attorney-CPA hires an accountant to perform services allegedly related to the rendering of legal services, this raises questions as to why such services were needed since the attorney-CPA could presumably pre·sum·a·ble
That can be presumed or taken for granted; reasonable as a supposition: presumable causes of the disaster. render similar services.
THE PAPER TRAIL
To enhance the likelihood of a successful claim of privilege, the legal purpose served by the accounting services should be documented as thoroughly as possible at the time the service is sought, provided and billed. The importance of doing this is underscored by Adlman (94-2 U.S.T.C. P50, 389 [May 1994]; 68 E3d 1495 [2d Cir. (1995)]). In Adlman, privilege was denied to letters and memoranda Arthur Andersen For the U.S. Supreme Court case commonly known as Arthur Andersen, see .
Arthur Andersen LLP, based in Chicago, was once one of the "Big Five" accounting firms (the other four are PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young and KPMG), performing prepared for a company at the request of Adlman, an attorney and the company's vice-president of taxes. The items in question concerned a proposed transaction, which later became the subject of an IRS investigation to determine the company's tax liability. In denying privilege, the court noted
* The invoices the company received from Arthur Andersen did not distinguish between the memoranda and other services the firm performed.
* No documents were offered reflecting that Arthur Andersen's services were in furtherance fur·ther·ance
The act of furthering, advancing, or helping forward: "Pakistan does not aspire to any . . . role in furtherance of the strategies of other powers" Ismail Patel. of legal services.
* No separate retainer agreement A retainer agreement is work for hire contract intermediate between simple contracting and direct employment but essentially still contracting. One element that distinguishes it from any other service contract is that a primary consideration which the buyer purchases is an option was shown establishing that Arthur Andersen's services were related to other than nonlegal work.
The Adlman holding is consistent with that in Fisher (51 E2d 424 [D.C. NY (1931)]) in which privilege was denied to information uncovered during an accountant's audit, despite the accountant later becoming an attorney for the client. The court found no evidence that the accountant had provided other than accounting services at the time the audit was performed.
While neither federal nor common law recognizes an accountant-client privilege, accountant communications and work product may be protected if they fall within the attorney-client privilege. However, the mere fact that an attorney was retained and communications took place between an accountant and the attorney does not necessarily mean privilege will apply.
To enhance entitlement An individual's right to receive a value or benefit provided by law.
Commonly recognized entitlements are benefits, such as those provided by Social Security or Workers' Compensation. to privilege, CPAs must carefully document the work they do and how it relates to providing legal services. To strengthen the case for privilege, an accountant should perform work at the request of an attorney according to a written agreement that specifies how the work relates to and furthers providing legal services. In addition, all parties should take steps to ensure that privilege is not waived and that the service is not viewed as strictly accounting in nature. Bieter holds promise that the attorney-client privilege will apply to a new and broader array of situations involving accounting services.
U.S. Supreme Court Standard 503
Supreme Court Standard 503, Lawyer-Client Privilege, says a client has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated professedly by a client to his counsel, solicitor, or attorney, is considered as a confidential communication.
2. made for the purpose of facilitating the provision of legal services to the chem. The communications can be
* Between the client or the client's representative and his or her lawyer or the client's lawyer's representative.
* Between the client's lawyer and that lawyer's representative.
* Made by the client and his or her lawyer representing another in a matter of common interest.
* Between representatives of the client.
* Between lawyers representing the client.
* BOTH COMMON AND FEDERAL LAW reject the idea of an accountant-client privilege like that which exists between attorneys and their clients. However, accountant-related communications still may be shielded from disclosure when an accountant acts as an agent for an attorney providing legal services.
* IN UNITED STATES V. KOVEL, THE SECOND circuit extended the attorney-client privilege to communications between a client and someone an attorney retains to provide accounting-related services. The court said that just as secretaries and clerks have been recognized as necessary to providing legal services, so should accountants.
* ATTORNEY-CLIENT PRIVILEGE CAN extend to a broad array of parties having a relationship with an attorney's client based Refers to hardware or software that runs in the user's machine. See client and client download. Contrast with server based. on U.S. Supreme Court Standard 503 and the Diversified Industries Inc. decision.
* NOT ALL COMMUNICATIONS BETWEEN an attorney and an accountant are privileged. Two common grounds for denying privilege involve finding it to have been waived and when the accountant's services are not sufficiently related to the provision of legal services.
* THE DECISION IN BIETER IS SIGNIFICANT for accountants. By analogy, Bieter extends attorney-client privilege to certain communications and work product of accountants.
* TO ENHANCE A SUCCESSFUL PRIVILEGE claim, the legal purpose of accounting services should be documented at the time a service is sought, provided and billed.
MARK A. SEGAL, CPA, JD, LLM LLM
Latin Legum Magister (Master of Laws)
LLM Master of Laws [Latin Legum Magister]
Noun 1. , is a professor of accounting at the University of South Alabama The University of South Alabama is a public, doctoral-level university in Mobile, Alabama, USA. It was created by the Alabama Legislature in 1963, and replaced existing extension programs operated in Mobile by the University of Alabama. , Mobile. He is a member of the Florida, Louisiana and Washington, D.C., bar associations.