IRS Effort to Obtain Client Names Sparks Disputes

September 10, 2003

The attorney-client privilege generally protects only the substance of communications between lawyers and clients. For this reason, courts rarely hold that a client’s identity deserves privilege protection. Most courts provide such protection only in exceptional circumstances—if the client’s identity would necessarily reveal the substance of the communications.

The IRS’s effort to find allegedly improper tax shelters have triggered a debate about this issue. Assessing the statutory taxpayer-tax practitioner privilege, one court ordered an accounting firm to reveal its tax shelter clients’ names (United States v. BDO Seidman, 337 F.3d 802 (7th Cir. 2003)), while another court protected an accounting firm’s clients’ names. United States v. Arthur Andersen, L.L.P., No. 02 C 6790, 2003 U.S. Dist. LEXIS 11255 (N.D. Ill. June 30, 2003). An Illinois Federal Court is currently dealing with the IRS’s attempt to obtain similar client information from the law firm of Jenkens & Gilchrist.

The occasional applicability of exceptional rules like this one highlight the importance of lawyers learning the nuances of the attorney-client privilege, not just the general rules.