- United States
Kovel, and employee of a law firm, refused to answer questions
in front of a grand jury.
Kovel is a former Internal Revenue agent having accounting
Since 1943 he has been employed by Kamerman & Kamerman, a law
firm specializing in tax law.
grand jury in the Southern District of New York was
investigating alleged Federal income tax violations by Hopps, a
client of the law firm; Kovel was subpoenaed to appear on
September 6, 1961, a few days before the date, September 8, when
the Government feared the statute of limitations might run.
Kovel cannot disclose without permission
The law firm advised the Assistant United States Attorney that
since Kovel was an employee under the direct supervision of the
partners, Kovel could not disclose any communications by the
client of the result of any work done for the client, unless the
Privilege does not extend to a non-lawyer
The Assistant answered that the attorney-client privilege did
not apply to one who was not an attorney.
Kovel was held in contempt for not answering questions in front
of grand jury.
- Privileges must include all the person who act as an
The assistance of these agents being indispensable to his work
and the communications of the client being often necessarily
committed to them by the attorney or by the client himself, the
privilege must include all the persons who act as the attorney's
- We cannot regard the privilege as confined to menial or
Thus, we can see no significant
difference between a case
where the attorney sends a client
speaking a foreign language to an interpreter to make
a literal translation of the client's story;
second where the attorney, himself having some little knowledge
of the foreign tongue, has a more
knowledgeable non-lawyer employee in the room to help out;
third where someone to perform that
same function has been brought along by the client;
and a fourth where the attorney, ignorant of the foreign
language, sends the client to a non-lawyer proficient in it,
with instructions to interview the client on the attorney's
behalf and then render his own summary of the situation, perhaps
drawing on his own knowledge in the process, so that the
attorney can give the client proper legal advice.
- Accounting concepts are a foreign language
Accounting concepts are a foreign language to some lawyers in
almost all cases, and to almost all lawyers in some cases.
Privilege should not be destroyed
The presence of an accountant, whether hired by the lawyer or by
the client, while the client is relating a complicated tax story
to the lawyer, ought not destroy the
privilege, any more than would that of the
linguist in the second or third variations of the foreign
language theme discussed above.
Accountant is necessary
The presence of the accountant is necessary, or at least highly
useful, for the effective consultation between the client and
the lawyer which the privilege is designed to permit.
- Lawyer ask client to tell story to accountant (Privilege is
If the lawyer has directed the client, either in the specific
case or generally, to tell his story in the first instance to an
accountant engaged by the lawyer, who is then to interpret it so
that the lawyer may better give legal advice, communications by
the client reasonably related to that purpose ought fall within
the privilege; there can be no more virtue in requiring the
lawyer to sit by while the client pursues these possibly tedious
preliminary conversations with the accountant than in insisting
on the lawyer's physical presence while the client dictates a
statement to the lawyer's secretary or in interviewed by a clerk
not yet admitted to practice.
- Communication made in confidence
What is vital to the privilege is that the communication be made
in confidence for the purpose of obtaining legal advice from the
- Seeking Accountant before consulting attorney (Not Protected)
If what is sought is NOT legal
advice but only
accounting service, or if the advice sought is the
accountant's rather than the lawyer's, no privilege exists.
Arbitrary Line to whom client communicates first.
We recognize this draws what may seem to some a rather arbitrary
line between a case where the client communicates first to his
own accountant (no privilege as to such communications, even
though he later consults his lawyer on the same matter, and
others, where the client in the first instance consults a lawyer
who retains an accountant as a listening post, or consults the
lawyer with his own accountant present.
- Privilege exists where lawyer needs outside help.
But that is the inevitable consequence of having to reconcile
the absence of a privilege for accountants and the effective
operation of the privilege of client and lawyer under conditions
where the lawyer needs outside help.
We realize also that the line we have drawn will not be so easy
to apply as the simpler positions urged on us by the parties --
the district judges will scarcely be able to leave the decision
of such cases to computers; but the distinction has to be made
if the privilege is neither to be unduly expanded nor to become