Criminal Justice Insider
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How to Maintain Privilege When Working With Consulting Experts in Criminal Cases
Criminal cases, especially those that touch on white collar crime, often involve extremely complex concepts beyond the ken of a lawyer. For example, a financial fraud case may require a very intricate understanding of business accounting. Likewise, a tax case may necessitate an expertise in tax auditing practice and procedure. Accordingly, it is not uncommon that a criminal defense lawyer will hire a consulting expert to help him or her prepare for trial. These consulting experts must often speak directly to the defendants to understand the complex facts underlying the indictment.
However, this raises thorny issues with regard to attorney-client privilege. The consulting expert is not an attorney. Nothing the attorney or the client shares with that consulting expert will necessarily be protected by the attorney-client privilege, and may be subject to inquiry by a prosecutor. That said, this expert is clearly part of the defense team, and the defense attorney would not adequately be able to prepare for trial without the expert’s help. How can defense attorneys maintain the attorney-client privilege when working with consulting experts?
The Court of Appeals for the Second Circuit answered this question in U.S. v. Kovel, 926 F.2d 918 (2d Cir. 1961). In Kovel, a grand jury was investigating federal income tax violations and subpoenaed Kovel, an accountant, who had been hired by the target’s law firm to assist with the defense. Kovel refused to comply with the subpoena on the ground that because he worked at the behest and direction of the law firm, therefore, he was an employee of the firm and thus covered by the attorney-client privilege. The district court disagreed and found him in contempt of court for his failure to comply with a valid subpoena. On appeal, the Second Circuit overturned the contempt finding, and held that so long as the accountant was retained for the purpose of helping the attorney dispense legal advice to his client, the communications as between the lawyer, the accountant and the client would be privileged. The Court drew the analogy between Kovel and an interpreter in finding that Kovel helped the attorney understand the foreign language of tax and accounting.
Since Kovel, most defense attorneys have employed a document colloquially known as a “Kovel Letter” to retain consulting experts. Such a letter sets forth that the consulting expert is being retained for the express and sole purpose of assisting the attorney in providing legal advice. Generally, through a “Kovel Letter” the consulting expert is retained by the attorney and not by the client to avoid any question that the consulting expert is part of the legal defense team. Further, in order to maintain Kovel protection, the function of the professional must be solely to assist the attorney. For example, if the accountant provides tax preparation services for the defendant, the information provided by the defendant will not be privileged under Kovel.
The Kovel case itself only extended these protections to accountants. However, courts have extended Kovel protections to other professions including psychiatrists (U.S. v. Alvarez, 519 F.2d 1036 (3d Cir. 1975) and even public relations consultants (In re Grand Jury Subpoenas, 265 F.Supp.2d 321 (S.D.N.Y. 2003). The key to effective Kovel protection is to be able to demonstrate that the professional is being retained by the lawyer to help the legal team to understand an area outside the attorney’s general knowledge so as to assist in providing legal advice.
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01.25.2021 | PRACTICE AREAS: Criminal Defense