Accountants can help clients and clients’ lawyers – in ordinary business
transactions, in explaining complex issues to lawyers who are giving legal
advice, and in litigation. These differing roles at different times can
trigger complicated attorney-client privilege and work product doctrine
In United States v. Fisher, No. 3:19-cr76-MCR, 2020 U.S. Dist.
LEXIS 34328 (N.D. Fla. Feb. 28, 2020), the court addressed the waiver
implications of defendant having copied his CPA on emails he claimed were
privileged. The court noted that the defendant “admits that [his
corporation], not the lawyer, employed [the CPA] as an accountant.” Id. at *2. Because “[i]t is not apparent from the emails that [the
CPA]’s advice was being sought for purposes of obtaining legal advice by
either [defendant’s] lawyer or [defendant’s corporation], the court “agrees
with the Government that any privilege has been waived by the disclosure to
a third party.” Id. at *1-2.
Lawyers representing corporations should remind their clients not to
include the company’s outside accountant in any privileged communications.
Next week’s Privilege Point will address the more subtle work product
doctrine implications of working with accountants.