Privilege
Accountant-Client
Form of Objection
· Privileged communication
· Witness incompetent (as to particular subject matter)
General Rule
· Without the client’s consent or the client’s heirs’ consent, an accountant “shall not disclose information” on any client communication, in person or through books of account/financial records or the accountant’s advice, reports, or working papers made in the engagement. Clerical staff of the accountant may not be examined about anything learned in that capacity without the client’s consent. Section 326.322, RSMo 2016. Section 326.322 creates exceptions to the “privilege.” Mo. Evidence Restated §506, pp. 201–04 (MoBar 6th ed. 2021).
Exceptions and Legal Authority
· The privilege may be waived, and it is waived when the client puts its financial condition at issue. State ex rel. Sw. Bell Publ’ns v. Ryan, 754 S.W.2d 30, 31 (Mo. App. E.D. 1988) (discovery for claim of loss of profits for a commercial enterprise).
· This privilege is inapplicable when the matter is material to the defense of an action against the accountant. State ex rel. Schott v. Foley, 741 S.W.2d 111, 113 (Mo. App. E.D. 1987) (filing an action against an accountant is an implicit waiver of the privilege: writ issued to prohibit the trial court from declaring the accountant “incompetent” to testify).
Attorney-Client
Form of Objection
· Privileged communication.
· Witness incompetent (as to particular subject matter).
· Privilege has not been waived by the client.
General Rule
· An attorney is barred from disclosing—and incompetent to testify about—confidential communications between the attorney and the client without the consent of the client. Three main elements must be shown for the privilege to apply:
1. An attorney-client relationship existed at the time the communication was made or advice was given.
2. The relationship existed with regard to the subject matter of the communication or advice.
3. The communication was made in the attorney’s professional capacity and because of the relation of the attorney and client.
· See Missouri Rule of Professional Conduct 4-1.6 on confidentiality of information. The consent of the client must be “informed” before the information can be revealed. There are exemptions. See, for example, Rule 4-1.6(b)(1), which permits disclosure if the attorney reasonably believes that death or substantial bodily harm will occur if the communication is not disclosed. Section 491.060, RSMo 2016 (persons incompetent to testify). See Mo. Evidence Restated §502, pp. 162–77 (MoBar 6th ed. 2021).
· A client has the privilege to refuse to disclose, and to prevent others from disclosing, confidential communications:
- between the client (or a representative) and the attorney (or the attorney’s representative);
- between the attorney and the attorney’s representatives; or
- among attorneys representing the client.
Examples of Exceptions and Legal Authority
· Waiver by the client, State v. Timmons, 956 S.W.2d 277, 285 (Mo. App. W.D. 1997) (client “affirmatively” waived the privilege by placing communications between the attorney and himself at issue when he filed his pro se motion for post-conviction relief). See Bridges v. Bore-Flex Industries, Inc., 531 S.W.3d 66, 74–75 (Mo. App. S.D. 2017) (discussion of privilege and work product in a shareholder derivative suit—privileged communication sought by a shareholder and involuntary disclosure in a prior lawsuit).
· Presence of a stranger to the relationship or matter may demonstrate non-confidentiality of a communication. State Farm Mut. Auto. Ins. Co. v. Allen, 744 S.W.2d 782, 787 (Mo. banc 1988) (attorney-client privilege could not be claimed because the attorney made a confidential communication when a third person representing an adverse interest was present) (citations omitted).
· After death of the client, in litigation among persons claiming under the decedent, the attorney may testify. Walton v. Van Camp, 283 S.W.2d 493, 499 (Mo. 1955) (waiver by representatives after client’s death).
· After the death of the client, a personal representative may waive the privilege. In re Estate of Hebbeler, 875 S.W.2d 163, 168 (Mo. App. E.D. 1994) (interpretation of “representative of the client”).
· It is important to distinguish work product from the...
