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Federal Case Law on non-attornies being protected under the attorney client privledge.
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Federal Case Law on non-attornies being protected under the attorney client privledge.
UNITED STATES OF AMERICA, APPELLEE
v.
LOUIS KOVEL, DEFENDANT-APPELLANT
No. 168, Docket 27207
United States Court of Appeals, Second Circuit
Argued November 2, 1961
Decided December 5, 1961
296 F.2d 918 (2nd Cir. 1961)
Louis Bender, New York City (Louis Bender and Jerome Kamerman), New York City, for appellant.
Gerald Walpin, Asst. U.S. Atty., New York City (Robert M. Morgenthau, U.S. Atty. for Southern Dist. of New York, David Klingsberg, Asst. U.S. Atty., New York City, of counsel), for appellee.
New York County Lawyers' Association, New York City (Boris Kostelanetz, Jules Ritholz and Bud G. Holman, New York City, of counsel), submitted a brief as amicus curiae.
Before CLARK, HINCKS and FRIENDLY, Circuit Judges.
FRIENDLY, Circuit Judge.
This appeal from a sentence for criminal contempt for refusing to answer a question asked in the course of an inquiry by a grand jury raises an important issue as to the application of the attorney-client privilege to a non-lawyer employed by a law firm. Our decision of that issue leaves us with the further problem of what disposition is appropriate on a record which, due to the extreme positions erroneously taken by both parties in the court below, lacks the evidence needed to determine whether or not the privilege existed. We vacate the judgment and remand so that the facts may be developed.
Kovel is a former Internal Revenue agent having accounting skills. Since 1943 he has been employed by Kamerman & Kamerman, a law firm specializing in tax law. A grand jury in the Southern District of New York was investigating alleged Federal income tax violations by Hopps, a client of the law firm; Kovel was subpoenaed to appear on September 6, 1961, a few days before the date, September 8, when the Government feared the statute of limitations might run. The law firm advised the Assistant United States Attorney that since Kovel was an employee under the direct supervision of the partners, Kovel could not disclose any communications by the client or the result of any work done for the client, unless the latter consented; the Assistant answered that the attorney-client privilege did not apply to one who was not an attorney.
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