Judge Caproni recently held in the context of a SEC enforcement action that communications with an outside compliance firm were not privileged. The communications at issue contained advice from a compliance consulting firm which, though staffed by attorneys, provided advice pursuant to a consulting agreement that specifically disclaimed the attorney-client relationship.
Judge Caproni found that this disclaimer was fatal to the assertion of privilege over the compliance materials:
The Court concludes that the disclaimers and the absence of a representation agreement, although not dispositive, create a strong presumption that the communications are not protected by attorney-client privilege. The existence of attorney-client privilege depends on the reasonableness of the putative client’s belief that he or she is seeking legal advice from an attorney. The reasonableness of that belief must be informed, at least in part, by the putative lawyer’s expressed refusal to serve as the putative client’s attorney. An attorney engagement, like any other professional relationship, derives from mutual consent. Accordingly, absent circumstances that suggest otherwise, the Court presumes that a communication between a person and a lawyer is not privileged when it follows an unequivocal disclaimer that the latter is not providing legal advice and is not acting in his or her capacity as an attorney.
Judge Caproni also held that tax opinions prepared by a law firm, but shared with an outside accounting firm, were not privileged.