Kovel Letter (Non-Attorney Communication)

Summary

This template is a Kovel Letter. It is used in situations where you must communicate with a non-attorney accountant such as a CPA, but you want to extend the privileged communication beyond the attorney and to the tax or accounting professional should a tax controversy exist or occur. This template includes practical guidance, drafting notes, and an alternate clause. Once the accountant is retained to assist counsel with legal services for the client, the accountant is eligible for the attorney's attorney-client privilege as to any confidential communications made to them by either the attorney or the client during the course of rendering legal advice. United States v. Kovel, 296 F.2d 918 (2d Cir. 1961); United States v. Judson, 322 F.2d 460 (9th Cir. 1963); United States v. Schmidt, 360 F. Supp. 339 (M.D. Pa. 1973). While a written agreement is not legally required, it should be common practice in order to clearly establish the nature and parameters of the relationship. Moreover, having a written agreement provides a useful reference for the attorney and the Kovel accountant should any dispute arise. Named after the case of its origin, this privilege, in legal parlance, is called a Kovel privilege. It should be noted that the Kovel privilege may not apply to situations in which the accountant, although working for the attorney, is rendering what is tantamount to accounting services for accounting advice, as distinguished from assisting the attorney in order to give legal advice. United States v. Gurtner, 474 F.2d 297 (9th Cir. 1973); Cavallaro v. United States, 284 F.3d 236 (1st Cir. 2002). For a full listing of key content covering general tax practice, procedure and controversy, see Tax Practice, Procedure and Controversy Resource Kit. For more information about the role of an accountant and when the Kovel privilege applies and does not apply, see Tax Controversies - Audits, Investigations, Trials § 5.07.