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

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. (The privilege does not apply, of course, if the non-attorney expert or professional is later expected to testify in court.)