Academic journal article Defense Counsel Journal

Practicing Double Has Its Perils

Academic journal article Defense Counsel Journal

Practicing Double Has Its Perils

Article excerpt

Practicing Double Has Its Perils

If lawyers do something that isn't "lawyers' work," they can't invoke the attorney-client or work product privileges, the Seventh Circuit instructed in United States v. Frederick,1999 WL 222947.

Challenging a summons from the Internal Revenue Service to produce documents, a combination lawyer-accountant claimed that some of the documents given to him by his client and some prepared by him were protected by the attorney-client privilege or were his work product, all created in connection with his preparation of the clients' tax returns. The district court examined the documents in camera and ruled some were privileged and some were not.

Affirming, Chief Judge Posner wrote for the Seventh Circuit panel that since there is no common law accountant's or tax preparer's privilege, taxpayers can't be allowed by hiring a lawyer to do the work of those people "to obtain greater protection from government investigators than a taxpayer who did not use a lawyer as his tax preparer." To rule otherwise, the court added, "would be to impede tax investigations, reward lawyers for doing nonlawyers' work, and create a privileged position for lawyers in competition with other tax preparers-and to do all this without promoting the legitimate aims of the attorney-client and work product privileges. …

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