We handle litigation involving, among others, accountants and accounting firms in various jurisdictions including Pennsylvania, Maryland, the District of Columbia, and Virginia. One of the issues our team has increasingly confronted is the assertion that the accountant-client privilege has been waived, either by a client or the client’s attorneys. As a result of recent litigation, we’ve prepared this post as a brief overview of the privilege and the circumstances in which it can be waived. Importantly, Maryland and Pennsylvania (unlike the District of Columbia and Virginia), recognize the accountant-client privilege and:
- The privilege in both jurisdictions is statutory;
- The privilege belongs to the client;
- The privilege is not as broadly construed as the attorney-client privilege; and
- The privilege can only be waived in certain situations.
- Only the client can waive the accountant-client privilege in Maryland and Pennsylvania;
- The client can waive the privilege by suing his/her former accountant;
- The client can waive the privilege by his/her conduct;
- If privileged materials relating to a client have been inadvertently produced by an attorney or other third-party, the client should immediately notify the producing party (to begin creating a paper trail);
- The client should always act as if the materials remain privileged if they are inadvertently produced, to do otherwise risks waiving the privilege.
Waiver of the Accountant-Client Privilege
The Maryland accountant-client privilege is statutory and set forth at Section 9-110 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code. The “purpose of the accountant-client privilege is to encourage free and open communication between the accountant and the client.” Importantly, the privilege belongs to the client.
Section 9-110 makes clear that, “the accountant cannot disclose the contents of any communication or any information derived from the client without expression permission by the client ….” That is, “absent a valid waiver … protected information may not be released by the accountant without the express permission of the client. Permission cannot be implied.”
Waiver can occur in certain, limited circumstances, including where the client discloses otherwise privileged materials to third parties, sues a former accountant for malpractice, or engages in conduct that demonstrates the client has ceased to treat the documents at issue as privileged. Recently, we have seen an uptick of cases where opposing counsel have asserted, often via motions to compel, that a client waived the accountant-client privilege as a result of his/her attorneys accidentally producing otherwise privileged materials. We have successfully defeated these motions by arguing that (1) the attorney cannot waive the accountant-client privilege absent some specific conduct or consent by the client, and that (2) the client did not consent or approve of the actions of the attorney in producing the otherwise privileged materials.
Pennsylvania’s accountant-client privilege is also statutory. The privilege belongs to the client and only he/she can waive the privilege. The privilege can be waived in certain instances, including where the client initiates suit against his/her former accountant, or where the client engages in “conduct inconsistent” with the assertion of the privilege. Thus, the focus in Pennsylvania (as in Maryland), is often on the conduct of the client and whether they consented to a disclosure of otherwise privileged materials, or somehow acted or engaged in conduct as if the materials were no longer privileged. The bottom line is the analysis will often turn on the facts of the individual case, but best practices dictate that clients should always act as if the materials in question are privileged, and should immediately contact, in writing, anyone that has produced otherwise privileged materials to a third-party and ask that those materials be returned.
If your accounting firm is facing issues with the waiver accountant-client privilege, contact George Mahaffey for assistance. He has the experience to deal with your specific questions and guide you to a solution. If you are interested in booking a speaker for a presentation on this subject, contact us today.
 See §9-110.
 Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 562, 714 A.2d 188, 193 (1998).
 Id. at 563, 714 A.2d at 193.
 Id. at 564, 714 A.2d at 193.
 Id. at 565, 714 A.2d at 194-95.
 63 P.S. §9.11a.
 Sansom Refining Co. v. Bache Halsey Stuart Shields, Inc., 92 F.R.D. 440, 441 (E.D. Pa. 1981).
 Emtec, Inc. v. Condor Technology Solutions, Inc., 1998 WL 242603, No. CIV. A. 97-6652, *2 (E.D. Pa. May 14, 1998).