If you watch police dramas on TV, you are sure to have seen this plot twist: the suspect tells his lawyer something the police really want to know. But the cops can’t force the lawyer to give them the information, because of “attorney-client privilege.”
Screenwriters trust that their audiences will understand not only what “privilege” is, but that it provides a leak-proof umbrella of confidentiality over those it protects.
You probably know that other communications are also privileged – those with your spouse, your religious advisor, and your doctor, for example. The law recognizes these as private, protected relationships, and prevents the forced disclosure of these communications.
But what about other trusted advisors who help you in your business or personal matters, such as your accountant, business manager, investment banker, real estate appraiser, insurance broker, public relations agent and so on? Communications with them would seem to be outside the umbrella of privilege.
Well, maybe not.
Under specific circumstances, the attorney-client privilege and work-product doctrine can also be extended to these and other service providers, as well as to the documents they prepare on your behalf.
Before we explain how, let’s review the four elements required for privilege to be present. They are: (1) a communication (2) between a client and an attorney (3) made with the intent that it be kept confidential (4) for the purpose of providing legal assistance to the client.
Under what is called the work-product doctrine, the privilege extends to documents and other tangible items prepared in anticipation of litigation.
The communication must be made to facilitate the rendering of legal services to the client.
The attorney-client privilege and the work-product doctrine can, in specific circumstances, shield communications with an accountant, business manager or other advisor.
For that to happen, he or she must be working either as an agent of the attorney or client, or working in a third-party capacity of providing consultation and services that are essential to the attorney’s ability to provide competent legal services to the client.
The privilege umbrella began to expand as a result of a case called United States v. Kovel. An investigative grand jury demanded that Kovel, an accountant, testify about his meetings with his client and the client’s attorney.
Kovel refused, was convicted of contempt of court, and was sentenced to a year in prison.
He appealed, and his conviction was reversed.
The appellate court held that the protection of privilege extended to communications between an attorney and an accountant when the accountant’s help was necessary for the attorney to fully understand the client’s situation and thus render competent legal advice.
(Another case, United States v Richey, clarified that an accountant’s work unrelated to a client’s legal matter – such as preparing a client’s tax return or giving business advice – is not covered by privilege.)
The reasoning in the Kovel case has been extended to other advisors, such as business managers, investment bankers, financial advisors, appraisers, engineers, public relations professionals and others.
Their work is covered by privilege when their assistance is necessary to help the attorney provide competent legal services to the client.
To support a claim of privilege, the relationship of the non-attorney advisor should be clearly documented.
This starts with an engagement letter for the specific services to be rendered by the non-attorney advisor, stating that such services are being requested and are necessary to provide legal services to the client, including matters in which litigation is anticipated and matters in which the non-attorney advisor’s consultation on a subject matter is essential to the legal services rendered.
If you have questions or concerns about any of these topics, or other aspects of your estate planning, feel free to contact Jacqueline Yu at [email protected] or 310-313-1195