Accountants Implicate Subtle Privilege and Work Product Issues: Part I

May 13, 2020

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 analyses.

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.