The Supreme Court created strong protections for the attorney’s thought processes and analysis in Hickman v. Taylor. However, the Court in Arthur Young & Co. created a loophole enabling opposing lawyers to access the lawyer’s thought processes and legal strategies. This loophole was created when the Court allowed discovery of an auditor’s tax workpapers, and lower courts then interpreted this decision to imply that disclosing information to the outside auditor constitutes a waiver of attorney work-product protections. This loophole can be corrected through a Congressional statute that impacts the Federal Rules of Evidence, which would protect communications between outside auditors and their clients for legally required audits. If Congress fails to act, then courts should hold that disclosure of documents to outside auditors as part of a Securities and Exchange Commission required audit does not waive attorney work-product protections.
Closing the Auditor Loophole: Towards a More Perfect Work-Product Waiver Doctrine,
Mich. Bus. & Entrepreneurial L. Rev.
Available at: https://repository.law.umich.edu/mbelr/vol11/iss2/3