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Privileges and Protections

Retaining an attorney comes with special privileges and protections that are not usually available when engaging other professionals.

Attorney-Client Privilege

The attorney-client privilege is one of the oldest privileges that protect confidential communications in the United States. “Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Not all communications between a client and his or her attorney are privileged. Courts generally afford protection if the communication is made: (1) in confidence, (2) for the purpose of obtaining legal advice, and (3) to a professional legal advisor. The privilege may be waived due to voluntary or inadvertent disclosure to third parties. There are also exceptions to the privilege. For example, communications made to obtain advice on the best way to commit a crime or fraud are not privileged.

Work Product Doctrine

The work product doctrine protects documents and other materials prepared or collected by an attorney in preparation for litigation from disclosure to third parties. The purpose of the doctrine is to prevent opposing parties from gaining access into an attorney’s legal strategy. A court may require disclosure of such materials “[w]here relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case[.]” Hickman v. Taylor, 329 U.S. 495, 511 (1947). It is, however, difficult to overcome the work product protection, because the opposing party must show that it cannot obtain similar material through another avenue without undue hardship.

Kovel Letter

While there is no accountant-client privilege under the common law, some communications between an accountant and a client may be privileged under the attorney-client privilege if the accountant is acting as an agent of the attorney. This agency theory comes from U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961), in which the Second Circuit held the attorney-client privilege should not be destroyed where a non-attorney employed by the lawyer or client is involved in communications that are made in confidence for the purpose of obtaining legal advice from the lawyer. “If what is sought is not legal advice but only accounting service... or if the advice sought is the accountant's rather than the lawyer's, no privilege exists.” Id. at 922.

An accountant is often retained with respect to the services provided by our firm. We understand the importance of maintaining communications confidential as we represent clients in sensitive tax situations. Therefore, any time a client’s accountant is involved in a matter, we prepare a Kovel letter to be signed by the attorney and the client’s accountant to keep communications confidential.

Federally Authorized Tax Practitioners

Section 7525 of the Internal Revenue Code grants protection to communications between a taxpayer and a federally authorized tax practitioner made for tax advice, so long as the communication would be confidential had it been made between a client and his or her attorney. A federally authorized tax practitioner includes attorneys, CPAs, enrolled agents, and any other individual authorized to practice before the IRS.

The Section 7525 privilege, however, is not as protective as the attorney-client privilege in two significant ways:

  1. The Section 7525 privilege does not apply in criminal tax matters. Therefore, if you are seeking representation in a criminal tax audit or in a criminal tax defense matter, you should retain a knowledgeable tax attorney, like the tax attorneys at the Ben-Cohen Law Firm.
  2. The Section 7525 privilege does not apply to state or local tax matters, unless the state or local authority has adopted it or established its own tax preparer-client privilege. California allows the Section 7525 privilege to be asserted in noncriminal tax matters before the Franchise Tax Board and State Board of Equalization. Revenue and Taxation Code secs. 7099.1(a)(2), 21028(a)(2). However, unlike the attorney-client privilege, you cannot assert the Section 7525 privilege in any other state matter, like a divorce proceeding.

While the privileges and protections that come with retaining an attorney are advantageous, some may feel that a CPA will be more knowledgeable about accounting concepts. By retaining the Ben-Cohen Law Firm, you do not need to choose, as we provide our clients with the unique skill sets of a tax attorney and a CPA. Attorney and CPA Pedram Ben-Cohen has extensive large-firm experience handling sophisticated tax matters and is also a Certified Taxation Law Specialist, certified by the State Bar of California Board of Legal Specialization.

Client Reviews
I approached Mr. Ben-Cohen regarding a pending case with the State of California and my small business. During a time that was quite stressful, I found Mr. Ben-Cohen to be the perfect person to represent me and my company. He communicated with me in clear terms so that I understood everything that was taking place in a timely manner. He treated my situation with the type of candor you only find in a consummate professional and successfully negotiated a deal with the State of California that far exceeded my expectations. I found him to be kind, efficient, sensitive and nothing short of brilliant. I consider myself fortunate to have met him and highly recommend his services. I will not hesitate to use his firm in the future should a need arise. Google, We Care Spa
I am an international tax advisor and have worked with Pedram on more than a dozen difficult and challenging cases. Pedram's clients and fellow advisors highly respect him because he has an uncanny ability to quickly identify and work diligently to resolve his clients' issues. Pedram is pragmatic in his approach. He is transparent with his clients and dedicated to getting to a fair and reasonable outcome. I have attended an IRS Appeals conference with Pedram and would want no other attorney on my side. Pedram is extremely passionate in his work and representing his clients. He is also enjoyable to work with and develops very good relationships with his clients and fellow advisors. I highly recommend Pedram for any tax controversy work. Avvo, Curt
Top Drawer Tax Fraud Lawyer. Pedram got me out a CI jam I thought I would not resolve. He is also fair and reasonable with his billing. I interviewed 4 top Tax Fraud Lawyers in LA and went with Pedram...Glad I did! Google, Michael Jeppson
Pedram Ben-Cohen at Ben-Cohen Law Firm, PLC is one of the most incredible, creative, and caring attorneys I have ever dealt with. He gave us hope but also gave us the reality and worst case scenario. He fought for us tooth and nail. The attention and time Pedram put into the case was like no other. He charged us more than fair and was very reasonable in every aspect. He is not the kind of attorney that charges for every minute. I liked him very much not only as an attorney but as a person because he is very honest, is true to his integrity, and is dedicated to his clients. He loves what he does and has the passion to protect and defend his clients, which totally shows in his work and our outcome. We originally hired another attorney from a famous firm who basically did not give us much hope on our case . That is when we came to Pedram who won our case in a short amount of time and got us the outcome we were looking for. Because of Pedram and his creativeness, willingness, and dedication, he got us our favorable outcome. He is our go to attorney for sure, without a doubt. Avvo, Anonymous
A few years ago I had a major tax problem and I was looking for the right professional tax lawyer. I interviewed at least five experts and all of them were very professional. I am very picky. When I met Mr. Pedram Ben-Cohen, it took me no more than five minutes to decide that he was the one, and I was absolutely right with my intuition. He is very professional, knowledgeable, smart, and knows his job perfectly. In addition to all of his professional skills, as a person he is very friendly, pleasant, ready to help, and took care of me like I was his own family. I referred and recommended him to friends and family with tax problems and will continue to do so warmly to anyone. I know that he is able and will do his job the best way for his clients. He is my personal tax lawyer and expert and will remain so. Google, Shlomo Kattan
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