United States v. Adlman: Defining the scope of the Kovel Privilege and Work Product Doctrine

By Juliet L. Fink
The CPA Journal
January 2017 Edition

Although the attorney-client privilege has long been recognized under common law, there is no corresponding taxpayer-accountant privilege [other than a limited privilege for “tax advice” in some non-criminal matters under Internal Revenue Code (IRC) section 7525]. Criminal and civil tax cases, however, often involve complex accounting principles that may necessitate the engagement of an accountant to aid the attorney in giving effective advice to the client.

Under such circumstances, the attorney-client privilege extends to communications with the accountant for the purpose of assisting the attorney in rendering legal services to the client; this is known as the Kovel doctrine after United States v. Kovel [296 F. 2d 918 (2d Cir. 1961)]. The attorney-client privilege (and by extension, the Kovel privilege) belongs to the client, who has the burden of proving its applicability when asserting it. This applicability must be established by the existence of specific facts; a simple blanket assertion is insufficient.