translates his activities into those of an accountant. Olender v. United States, 9 Cir. 1954, 210 F.2d 795, 805-807; United States v. Chin Lim Mow, N. D. Cal. 1952, 12 F. R. D. 433; see United States v. Schoeberlein, D. Md. 1971, 335 F. Supp. 1048; United States v. Higgins, S. D. W. Va. 1966, 266 F. Supp. 593.
Similarly, what is vital to the assertion of the privilege by an accountant employed by an attorney is that he assist in providing legal advice rather than merely rendering accounting services;
and the specific nature of the proponent's burden is to establish that the accountant's role is essentially consultative. United States v. Gurtner, 9 Cir. 1973, 474 F.2d 297, 298-99.
The significant facts are undisputed. Vincent McCue retained Shumaker, Williams & Placey in 1969 to obtain a legal opinion regarding certain business and tax matters. Approximately eight months later, the attorneys employed Schmidt's firm to assist them in accumulating the business and financial information necessary to allow them to provide complete legal advice to McCue.
Under the circumstances, it is immaterial that the particular information sought pertains to preparation of the McCues' 1969 income tax return. Preparation of a return by an attorney pursuant to a bona fide attorney-client relationship is sufficiently within his professional legal competence to be subsumed by the privilege;
any attempt to limit the protection of the privilege along functional lines to account for Schmidt's participation in the process would distort the interactional realities of the relationship, i.e., to the extent that preparation of a return requires the exercise of legal judgment the adequate formulation of which itself is contingent upon prior consultative accounting, a legal process is involved within which related accounting services legitimately are included. See Note, Functional Overlap Between The Lawyer And Other Professionals: Its Implications For The Privileged Communications Doctrine, 1962, 71 Yale L. J. 1226, 1246, 1249.
However, the privilege extends only to confidential communications
made by a client within the context of the relationship, not to the relationship itself. United States v. Goldfarb, 6 Cir., 328 F.2d 280, 282, cert. denied, 1964, 377 U.S. 976, 84 S. Ct. 1883, 12 L. Ed. 2d 746; Gretsky v. Miller, D. Mass. 1958, 160 F. Supp. 914; see United States v. Long, E. D. Mo. 1971, 328 F. Supp. 233, 235-36. Therefore, the inquiry presently before the court is whether, under all the circumstances,
a responsive answer to each question
might threaten disclosure of information communicated in professional confidence. Cf. United States v. Reynolds, 1953, 345 U.S. 1, 9, 97 L. Ed. 727, 73 S. Ct. 528; Hoffman v. United States, 1951, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 71 S. Ct. 814.
Questions 7B-7I, 8D-2, 8E, 8F, 16A, 16B and 16D, insofar as they inquire into the identities of persons who prepared various portions of the 1969 return, and whether Schmidt's firm prepared any other returns for McCue, the nature of them, and upon whose authority they were prepared, must be answered. Absent special circumstances not present here,
neither the identity of any of the parties
nor the fact that legal services are performed
is privileged from disclosure. Colton v. United States, 2 Cir. 1962, 306 F.2d 633, 636-38, cert. denied, 1963, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499; United States v. Long, E. D. Mo. 1971, 328 F. Supp. 233 ; Kelly v. Simon, 62-1 U.S. Tax Cas. (CCH) P9334 (S. D. Cal. 1962).
Questions 9B-9H and 10B-10F attempt to ascertain, respectively, from where the books and records used to secure information compiled on the return came; who instructed members of Schmidt's firm in their use; when the instructions were given; how the meeting at which they were given was arranged; who arranged it; what disposition was made of them after use by Schmidt's firm; their present location; the disposition made of accounting workpapers compiled during preparation of the 1969 return; their present location; whether they are available for Internal Revenue Service review; and, if not, why not.
This information relates to peripheral matters which are not confidential within the meaning of the attorney-client privilege.
See United States v. Pappadio, 2 Cir. 1965, 346 F.2d 5, 9, vacated and remanded on other grounds, 1966, 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622; United States v. Long, E.D. Mo. 1971, 328 F. Supp. 233, 236; Kelly v. Simon, S. D. Cal. 1962, 62-1 U.S. Tax Cas. (CCH) P9334.
In 17A, Schmidt is asked the amount of the fee charged by his firm for preparation of the McCues' 1969 individual income tax return. His answer merely indicates that two billings were rendered to Shumaker, Williams & Placey for general consultative services provided them relative to their client, Vincent McCue. Petitioners consider this response inadequate, presumably desiring an estimate of that percentage of the aggregate fee reasonably allocated to preparation of the 1969 return.
Amounts paid for legal services ordinarily are not protected by the attorney-client privilege,
and there is no evidence from which to infer that such an estimate might threaten disclosure of a confidential communication. In formulating his response, Schmidt should take into account the extent to which his firm's participation in the preparation of the return involved the process of reciprocal interaction alluded to previously.
In addition, he will be required to answer 17B regarding the components of the fee. However, only general responses need be made, e. g., "interpretation of data," "formulation of recommendations to counsel," "mathematical computation," "implementation of counsel's instructions." Accord, Colton v. United States, 2 Cir. 1962, 306 F.2d 633, 636, cert. denied, 1963, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499; United States v. Long, E. D. Mo. 1971, 328 F. Supp. 233, 236.
The following questions will be considered together: 8A, 8 A-1, 8B, 8C, 8C-1, 8D, 8D-1, 8E, 8F;
9A; 16C; 19;
Each attempts to elicit sources of information underlying data appearing on a tax return. These are not confidential. In Re Colton, S. D. N. Y. 1961, 201 F. Supp. 13, 18 aff'd, sub nom. Colton v. United States, 2 Cir. 1962, 306 F.2d 633, cert. denied, 1963, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499. Indeed, it is important that the questions be answered because, to the extent that information used in preparing a return is derived from sources other than the clients or the clients' agents, the substance of it is not privileged. See e. g., United States v. Threlkeld, W. D. Tenn. 1965, 241 F. Supp. 324, 326; 8 Wigmore, Evidence § 2317 (McNaughton rev. 1961).
Question 11 inquires whether Schmidt was given instructions during preparation of the 1969 return; by whom they were given; and the nature of them. His reply indicates that the firm was given specific instructions by Shumaker, Williams & Placey, but he refuses to reveal their substance. Because of the likelihood that disclosure of the instructions would provide a basis for inference of the tenor of information communicated in confidence by the McCues, the question need not be answered. Accord, United States v. Jacobs, C. D. Cal. 1971, 322 F. Supp. 1299, 1303; see Henderson v. Heinze, 9 Cir. 1965, 349 F.2d 67, 70; Schwimmer v. United States, 8 Cir., 232 F.2d 855, 863, cert. denied, 1956, 352 U.S. 833, 77 S. Ct. 48, 1 L. Ed. 2d 52; In Re Scranton Corporation, M. D. Pa. 1965, 37 F. R. D. 465, 468; American Cyanamid Company v. Hercules Powder Company, D. Del. 1962, 211 F. Supp. 85, 87; 8 Wigmore, Evidence § 2320 (McNaughton rev. 1961); cf. United States v. Brown, N. D. Ill. 1972, 349 F. Supp. 420, 427-29.
The same principle applies, mutatis mutandis, to questions 14 and 15A, in which petitioners ask, respectively, why a specific question on page one of the 1969 return was not answered, and why no pre-paid taxes were listed on lines 19-22, inclusive.
Questions 7C-7, 8A-2, 8B, 8C, 8C-1 and 15B seek substantive information related to that which appears on the return. Each threatens the disclosure of confidential communications,
either directly or by inference.
However, as previously noted, the substance of information acquired from sources other than the clients or their agents is not privileged. See, e.g., United States v. Threlkeld, W. D. Tenn. 1965, 241 F. Supp. 324, 326; 8 Wigmore, Evidence § 2317 (McNaughton rev. 1961). Therefore, Schmidt will be directed to reveal from whom the information requested in 7C-7 and 15B came.
Upon compliance, he need only disclose its content to the extent that it is derived from sources without the protection of the privilege.
Similar considerations are dispositive of question 10A, in which Schmidt is requested to describe in detail all workpapers, memoranda and notations compiled during preparation of the 1969 return. The workpapers should be protected insofar as they record clients' confidential communications;
but much of the information contained in them may have come from unprotected sources, and a blanket claim of testimonial immunity arising from a consultative employment relationship falls short of meeting respondents' burden to establish that the specific information they desire to withhold is within the scope of the privilege. United States v. Brown, N. D. Ill. 1972, 349 F. Supp. 420, 429; accord, Colton v. United States, 2 Cir. 1962, 306 F.2d 633, 639, cert. denied, 1963, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499.
Accordingly, Schmidt must disclose the sources of information contained in his workpapers; to the extent that they are unprotected, the substance of it must be revealed. Accord, Colton v. United States, 2 Cir. 1962, 306 F.2d 633, 639, cert. denied, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499 (1963).
For the reasons given, and in the manner indicated, Schmidt will be directed to respond to all questions except 11, 14 and 15A.
This memorandum shall constitute findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
Proposed Questions to J. Donald Schmidt Pursuant to the Internal Revenue Service Summons Issued on 4/1/71 by James W. Meade, Jr., Special Agent
Schooling -- Where, When and extent