On Nov 2, 2:57 pm, Dick Adams <rdad...@panix.com> wrote:
> A CPA in the course of doing forensic accounting for an
> attorney in a divorce settlement obtained financial
> information detrimental to client's position on the
> property settlement.
The CPA is a hired expert witness in this situation. No privilege applies to any information shown to her.
<snip>
> The problem is that the husband's attorney wants to
> depose my colleague on how she arrived at her numbers
Sounds reasonable. Most attorneys want to depose the opposing witnesses, especially hired experts, before trial to find out what they are going to say, and also to dig for material that might be useful on cross-exam.
> and she does not want to do that.
It's not her choice. She's been identified in discovery as a hired expert witness, and the opposing attorney can depose her if he chooses.
> When I suggested the
> attorney-client privilege extended to her, she replied
> she wasn't use to giving ambiguous/half-truth answers.
As well she shouldn't. Don't want to get the CPA code of ethics brought down on her, much less a conviction for perjury.
> I suggested she have her partner handle the deposition.
Is her partner the one who's going to testify? If not, what's the point of deposing the partner?
> Her problem is she has a partner in name only - they
> have an LLC for the purposes of sharing office overhead.
That doesn't matter if the point is to inquire into the various individuals' knowledge of facts. It does matter if CPA #1 is the one wife hired as her forensic accounting expert, and if partner #2 had nothing to do with that and therefore no knowledge of the situation, why would anyone want to depose the partner?.
> Shouldn't the privilge extend to her partner regardless?
No. The whole point of revealing facts to an expert witness is to provide a basis for the expert's opinion. If the expert were to be given partial and inaccurate information by the wife's attorney, that would open her up for cross-exam regarding the flimsiness of the basis for her opinion, but the CPA witness would not actually be lying if she said that, based on the information known to her, wife's net worth was $X. However, since the CPA expert was in fact given full access to wife's records, and does in fact know about the hidden assets, she would be lying if she testified (at trial, OR at deposition) that wife's net worth was $X if she knew that the real figure was several million higher than $X. Aside from the unpleasant prospect of having to keep Martha Stewart company after a conviction for perjury, perhaps an even more compelling reason for the CPA to tell the truth is that she could be debarred and de-certified from the CPA profession, or what might even be worse for her if forensic work is a major part of her practice, she could be barred from testifying by the court, and as a result (since every other potential client OR opponent would know about her lack of candor, and other courts would likely follow suit) her whole forensic practice would go down the toilet. An expert who has been shown to have no honesty or integrity is worthless.
> This is in Maryland.
IMO the same rationale applies everywhere, but experts are not entitled to claim attorney-client privilege in MD.
Perhaps this is a good time for a BRIEF review of the A-C privilege in general. The privilege does NOT mean that an attorney can counsel his client to lie, or that the attorney can hide factual information made known to the attorney by the client if those facts are relevant and discoverable the pending suit, are asked for in discovery, and are known to the attorney.
The only thing the A-C privilege protects against is, discovery of the content of the actual COMMUNICATIONS between the client and the attorney where those communications are for the purpose of giving or obtaining legal advice. IOW, it is not proper to ask a witness (wife) in discovery, :What did you tell your lawyer about what investments you have an interest in and what they are worth?" However, it is perfectly proper, and must be answered truthfully, to ask, "What investments do you have an interest in and what are they worth?" If either the lawyer, or the wife, lies in answering that proper question, serious consequences could ensue (assuming, of course, that they are eventually found out; which happens more often than you might think). For virtually any lawyer who is not already so crooked that disbarment is just a matter of time, it is NOT worth getting his ticket punched to save a few bucks for one measly client by lying to the court.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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