How Not to Waive Privilege When Consulting Non-Attorney Experts or Professionals

By Caroline Rule
Criminal Litigation
December 2016 Edition

Frequently, defense counsel in criminal investigations and prosecutions - particularly in tax-related prosecutions, but also in many other complex matters - cannot provide effective assistance to his or her client without consulting a non-attorney expert or professional, such as an accountant. The Second Circuit's seminal decision in United States v. Kovel, 296 F2d 918 (2d Cir. 1961), established that, if the non-attorney expert or professional is engaged by an attorney to assist the attorney in representing a client, and the services of the non-attorney expert or professional are necessary to translate, interpret, or explain client communications so that the attorney fully understands them, then communications between the attorney, the client, and the non-attorney expert or professional (hereafter, the "Kovel expert") are protected under the attorney client privilege.