United States v. Kovel

Citation. United States v. Kovel, 296 F.2d 918, 62-1 U.S. Tax Cas. (CCH) P9111, 9 A.F.T.R.2d (RIA) 366, 96 A.L.R.2d 116 (2d Cir. N.Y. Dec. 5, 1961)

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CitationUnited States v. Kovel, 296 F.2d 918, 1961 U.S. App. LEXIS 3045, 62-1 U.S. Tax Cas. (CCH) P9111, 9 A.F.T.R.2d (RIA) 366, 96 A.L.R.2d 116 (2d Cir. N.Y. Dec. 5, 1961)

Brief Fact Summary. Defendant is a non-lawyer accountant who worked for a law firm whose client was being investigated for income tax violations. He was sentenced for contempt for failing to answer a question claiming the attorney-client privileged applied to him.

Synopsis of Rule of Law. The attorney-client privilege applies to communications made in confidence while obtaining legal advice from a lawyer.

Points of Law - Legal Principles in this Case for Law Students.

The elements of the attorney-client privilege are: (1) Where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.

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Facts. Defendant, Kovel, refused to answer a question by a grand jury investigating a client of the law firm where Defendant was employed. The client was being investigated for Federal income tax violations. Defendant is a non-lawyer accountant hired by the law firm Kamerman & Kamerman. The law firm specializes in tax law. Defendant’s law firm argued that he was subject to the attorney-client privilege and could not disclose attorney-client communications unless the client consented.

Issue. Should the attorney client privilege be allowed to prevent Defendant from answering questions even though he is not a lawyer?

Held. Justice Friendly issued the opinion for the United States Second Circuit Court of Appeals in holding that the attorney-client privilege may apply to Defendant depending on whether the communications were for seeking legal advice or accounting advice.

Discussion. The Court of Appeals notes that each instance of deciding whether or not the attorney-client privilege applies to non-lawyers should be reviewed on a case-by-case basis. If what is sought from the non-lawyer is not legal, then the privilege should not apply. The communication should be for the purpose of obtaining legal advice from a lawyer.

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