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Accountant’s Privilege and the Illinois Public Accounting Act

by Kevin J. Richter, Shareholder

A recent Illinois Supreme Court case dealt with the application of the accountant’s privilege. The Illinois Public Accounting Act at 225 ILCS 450/27 provides that “A licensed or registered certified public accountant shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a licensed or registered certified public accountant. This Section shall not apply to any investigation or hearing undertaken pursuant to this Act.”

There has been much confusion as to who actually owns the accountant privilege.  The Supreme Court in Brunton v. Kruger concluded that the accountant’s privilege included in the Illinois Public Accounting Act is not part of a legislative created body of evidentiary privileges for other professionals, but rather is “an attribute of the accounting profession.”  The Supreme Court also ruled that the legislative scheme enacted to regulate the accounting profession did not fall under the common law “testamentary exception” which is used to defeat the attorney-client privilege.  The accountant privilege withstands the challenge of the “testamentary exception.” 

Since there is very little authority or case law interpreting the accountant’s privilege, this is a significant case.  A word of caution to CPAs, please consider the application of the privilege and guard against the unintended waiver of that privilege.  If a CPA is involved in an investigation concerning a client, it is wise to consultant with an attorney to avoid any unintended waiver of the privilege held by the accountant. 

Kevin J. Richter is a shareholder at Mathis, Marifian & Richter (MM&R), who focuses his practice in business law, taxation law, estate planning, employee benefits law, employment law and real estate law. Kevin’s Certified Public Accountant (CPA) background is helpful in understanding complex financial issues. He has represented clients before the Internal Revenue Service, the United States Department of Labor, the Equal Employment Opportunity Commission, the Illinois Department of Revenue and the Illinois Department of Human Rights.

If you would like more information, contact Kevin J. Richter by phone at (618) 234-9800, ext. 228 or by email at krichter@mmrltd.com.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.

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