Most courts reject privilege protection for communications to or from
client agent/consultants such as accountants. And many courts reach the
same conclusion about accountants that are retained by lawyers – unless the
lawyers can prove that the accountants assisted them in providing legal
Every now and then, a court takes a refreshingly broad view of privilege
protection in those circumstances. In Chartwell Therapeautics Licensing LLC v. Citron Pharma LLC, the
court held that an accountant retained by a law firm deserved privilege
protection – noting that "when [the client] contacted [the law firm] to
seek legal advice in connection with its dispute with [the defendant] in or
around June 2015, [the law firm] had already retained [the accountant] to
assist [law firm] and [client] in connection with another litigation." No.
16 CV 3181 (MKB) (CLP), 2018 U.S. Dist. LEXIS 119210, at *3 (E.D.N.Y. July
17, 2018). The law firm then "expanded the scope of the retainer" to assist
in the new litigation. Id. After reading samples of withheld
documents, the court upheld plaintiff's privilege and work product claims,
explaining that "[i]n light of the complex factual and numerical issues
presented by this case, it is eminently reasonable for counsel to rely
extensively on the services of an accountant to assist the lawyer in
rendering legal advice." Id. at *8.
The law firm's earlier retention of the accountant undoubtedly helped. But
perhaps most importantly, the withheld documents apparently satisfied the
court that the accountant had assisted the lawyers in giving legal advice
rather than providing his or her own parallel accounting advice.
Corporations and their lawyers must keep these factors in mind when seeking
to maximize privilege and work product protection.