Criminal Defense and the Use of Experts

In many cases, defense attorneys utilize various experts to assist in their defense of a client. Those experts may include private investigators, forensic accountants, psychologists, DNA analysts, accident reconstruction analysis and economists. While experts can provide invaluable assistance in understanding the prosecution’s theory of the case and in analyzing and attacking the government’s evidence, special care must be taken to protect and preserve the attorney-client and work-product privileges.

Attorney-client privilege protects communications between the client and her lawyers that are made in confidence and for the purpose of obtaining legal advice. The purpose of the privilege is to promote full and frank communication about the matter. Similarly, the work-product privilege is designed to protect communication from discovery when they were made in anticipation of litigation. The scope includes documents and tangible items prepared by the attorneys or others under their direction – usually experts. Absent the crime-fraud exception where the attorney is involved in the client’s ongoing crime, or communications about future criminal activity as opposed to past, completed crime, the attorney-client privilege is a bedrock principle of our legal system and cannot be intruded upon by the government.

What happens when a third party is brought into the attorney-client relationship and communications? Under normal circumstances, the privilege is waived by disclosing information to someone other than the attorney or his staff. To protect the privilege, the law firm must formally retain the experts to provide analysis and advice about the pending litigation or case. The lawyers’ discussions with the experts about privileged information gleaned from the client are protected as long as those communications are about the subject matter of the litigation. In a financial crime or tax case, forensic accountants are routinely hired under what is known as a “Kovel” agreement, named after a Second Circuit case dating back to 1961. Other types of experts hired by the law firm fall under similar protections as they are acting as agents of the lawyer.

Experts hired by a law firm during the course of litigation to assist the firm in defending a client are protected absent any waiver. This is quite different from an accountant hired individually by a taxpayer to handle their annual tax returns. Communications and documents provided by the client to their regular accountant or tax preparer are not protected in a criminal investigation as they were not made under the circumstances listed above. Thus, the IRS may and will interview the client’s accountant as to any statements made by the client and subpoena any documents provided by the client.

Waiver of these privileges can occur under a number of scenarios too complicated to explain here in detail. Whenever experts are used in a criminal investigation or case, care must be taken by counsel and client alike to zealously protect that privilege.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.