No Attorney-Client Privilege for Expert Witnesses

I am concerned the article “ Attorney-Client Privilege: CPAs and the E-Frontier ” ( JofA , Apr.04, page 64) might lead readers to conclude the attorney-client privilege applies to expert witnesses. Nothing could be further from the truth.

While it is true in certain situations when an attorney retains a CPA that the work performed may be protected by the attorney-client privilege, this is not the case once the CPA is designated as an expert witness. Furthermore, in most jurisdictions, all work, including work performed before the CPA is designated as the expert for a case, becomes subject to discovery.

As a result practitioners who may be designated as experts need to be aware their workpapers and everything they discuss or write about a case are potentially discoverable. That includes discussions with the attorney for whom they are performing the services and all written materials and electronic items sent to or received from that attorney. Since privilege and discovery are legal matters, CPAs should discuss such issues with the attorneys who retain them.

I am also concerned by the suggestions in the article that engagement letters be obtained from the lawyer and that they state all CPA workpapers are the attorney’s property. Engagement letters are legal contracts, and practitioners should be sure that provisions important to CPAs are included in them. That might not happen if the engagement letters are obtained from the lawyer. AICPA Consulting Services Practice Aid 96-3 is a good resource that discusses communicating understanding for litigation services work and includes sample engagement letters.

Before agreeing that all CPA workpapers are the attorney’s property, CPAs should check with their own attorneys or their professional liability carriers. If a practitioner’s work is ever questioned, it is important that he or she have ready access to the workpapers in order to be able to defend the work that was performed.

Practitioners who perform litigation services work should be familiar with AICPA Consulting Services Special Report 03-1, Litigation Services and Applicable Professional Standards (referenced in the article), as well as the relevant consulting services practice aids listed in that special report.

John M. Caron
Reback, McAndrews & Kjar LLP
Manhattan Beach, California