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 advice.
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.