The call rarely goes to a criminal defense lawyer first. It goes to the advisor the client already trusts, which is usually the CPA, the business attorney, the wealth manager, or the consultant who has been in the room for every important decision for a decade.
That is a reasonable instinct on the client’s part and a genuinely difficult position for the advisor. You are being asked for guidance in a situation where the ordinary rules of your professional relationship may not protect the conversation, where the most natural helpful actions can create serious problems, and where you may already be a witness.
I have spent nearly two decades defending criminal cases in South Florida, including several years as a prosecutor before that. What follows is not a pitch. It is the set of things I wish more advisors knew before that first conversation happens, because the damage done in the opening days is frequently the hardest part of the case to undo.
Why It Lands on Your Desk First
Three reasons, and understanding them helps.
The client does not yet believe it is a criminal matter. A subpoena for records, a call from an investigator, an agent at the office asking a few questions: none of that announces itself as a criminal case. It looks like a compliance issue, or an audit, or a misunderstanding. So it goes to the person who handles compliance issues.
The client is embarrassed. Calling a criminal defense lawyer requires admitting to yourself that this is what your life has become. Calling your accountant does not.
And the client thinks speed matters more than caution. The overwhelming instinct is to resolve it quickly and quietly, and the advisor is the person best positioned to help do things quickly and quietly. That instinct is usually wrong, which is the subject of most of this article.
The Privilege Gap
This is the part that surprises even sophisticated advisors, and it matters most for the CPAs in the room.
Florida does have a statutory accountant-client privilege. Section 90.5055 of the Florida Evidence Code gives a client the privilege to refuse to disclose, and to prevent others from disclosing, the contents of confidential communications with a certified public accountant made in the rendition of accounting services, along with other confidential information the accountant obtained from the client for the purpose of rendering accounting advice.
That is a real protection, and it is more than most states provide. But it has two limits that matter enormously in exactly the situation we are discussing.
The crime-fraud exception
There is no privilege where the accountant’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or should have known was a crime or fraud.
Read that in the context of an investigation. The government’s theory, by definition, is that something improper happened. If the government is right, the exception may swallow the privilege for precisely the communications that matter. The privilege is strongest where it is least needed and weakest where it is most needed.
It is a Florida privilege
Section 90.5055 is a provision of the Florida Evidence Code. It governs Florida proceedings.
Federal law does not recognize a general accountant-client privilege. The one federal provision in this area, 26 U.S.C. § 7525, extends limited confidentiality to communications with a federally authorized tax practitioner, and its own terms confine it: it may be asserted only in a noncriminal tax matter before the Internal Revenue Service and in a noncriminal tax proceeding in federal court brought by or against the United States. It does not apply in criminal proceedings, including IRS Criminal Investigation matters.
So in a federal criminal investigation, which is where a great many South Florida white-collar matters end up, the accountant is generally a witness with documents rather than a confidant with a privilege.
The same basic problem applies, in different forms, to financial advisors, consultants, insurance professionals and business coaches. None of those relationships carries a privilege comparable to the attorney-client privilege.
The Kovel engagement
There is a mechanism that can help, and advisors should know it exists because it has to be set up correctly and in advance.
In United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), Judge Friendly held that the attorney-client privilege can protect communications between a client and an accountant, or between the accountant and the client’s attorney, where the accountant’s role is to clarify communications between the attorney and the client. He analogized the accountant to a translator, observing that accounting concepts are a foreign language to some lawyers in almost all cases and to almost all lawyers in some cases.
Courts have kept it narrow. The protection depends on the accountant genuinely assisting the attorney in delivering legal advice rather than performing ordinary accounting work.
The practical requirements follow from that.
- The attorney engages the accountant, not the client. The engagement letter runs from the law firm
- The engagement is for the purpose of assisting the attorney’s legal advice, and it says so
- The work is segregated from ordinary compliance or tax preparation work for the same client
- It is usually a different accountant. A CPA who has been preparing the client’s returns for years is a fact witness about those returns. Recasting that person as a privileged consultant on the same subject matter is unlikely to succeed and risks the privilege claim entirely
For the advisor, the useful takeaway is this: if you want to be inside the privileged circle, that has to be arranged through counsel before the substantive conversations happen. It cannot be applied retroactively to conversations that already occurred.
The First Conversation
Assume the client calls you tomorrow and says an investigator wants to talk to them. A few things help, and a few things hurt.
What helps. Telling the client to say nothing substantive to investigators until they have spoken with a criminal defense lawyer. Declining an interview is not an admission and cannot be used as one. Getting counsel involved today rather than after the interview. Being clear with the client that you may not be able to keep the conversation confidential, so they should be careful what they tell you before counsel is in place.
What hurts. Helping the client prepare an explanation. Reviewing the records together to work out what happened. Reaching out to other people who were involved to find out what they remember. Sending a reassuring email summarizing your understanding of the situation. Every one of those is well-intentioned, and every one of them creates evidence, potentially including evidence that looks like coordination.
The hardest thing to convey is that the client’s most reasonable instinct is the dangerous one. People under investigation want to explain. In my experience, the explanations offered in the first week, before anyone has seen the government’s file, cause more damage than any other single factor. An account given without knowing what the government has is an account that will be tested against material the client has never seen.
Records, and the Mistake That Turns a Problem Into a Case
If there is one thing to take from this article, it is this: nothing gets deleted, discarded, cleaned up, or reorganized.
Not the ambiguous email. Not the draft that was superseded. Not the file that was going to be purged under the retention policy next month anyway. Not the text thread.
Destruction of records during an investigation is its own offense; it is often far easier for the government to prove than the underlying conduct, and it converts a defensible substantive case into an indefensible obstruction case. I have seen clients survive the allegation they were investigated for and be convicted of what they did afterward.
Practical steps for the advisor:
- Suspend automatic deletion immediately, including email retention rules, backup rotation, and document destruction schedules
- Tell the client, in writing, to preserve everything. That instruction is a good document to have in the file
- Do not reorganize or annotate existing records. Adding explanatory notes to a file during an investigation creates a document the government will read as consciousness of guilt
- Route document requests through counsel. A subpoena to your firm for a client’s records is a legal question with a legal answer, and complying informally can waive positions worth preserving
- Track what you produce, to whom, and when
You May Already Be a Witness
This is the part advisors find most uncomfortable, and it deserves saying plainly.
If you prepared the returns, structured the transaction, valued the asset, drafted the agreement, or advised on the decision, you are a fact witness. The government may interview you. You may receive your own subpoena. In some matters, advisors have exposure of their own.
That reality creates a genuine conflict with the instinct to help.
- You cannot be the client’s advocate and their witness. Attempting both compromises your own position and does not help theirs
- Consider your own counsel. Not because you have done anything wrong, but because a witness with independent advice makes better decisions than one improvising. This is routine, and it is not disloyal
- Be careful about joint conversations. A meeting with the client and their new criminal lawyer, where you are also a potential witness, may not be privileged as to you, and the presence of a third party can complicate the client’s privilege claim
- Do not discuss your recollection with other witnesses. Comparing notes with other people who were involved is the single fastest route to an obstruction theory, however innocent the intention
The right move, almost always, is to get the client to competent criminal counsel quickly and then let that lawyer manage the perimeter, including your role in it.
Parallel Proceedings
South Florida matters frequently involve more than one proceeding at once: a criminal investigation, a civil suit, a regulatory or licensing inquiry, an insurance coverage question, sometimes an internal investigation as well.
Advisors are often the first to notice that the timelines are colliding, and the interaction is not intuitive.
The criminal case usually has to drive. Civil discovery obligations and regulatory cooperation requirements can compel testimony and documents that then become available to prosecutors. A client who gives a deposition in the civil case has created a sworn statement that will be compared line by line with any later account.
Invoking the Fifth Amendment in the civil proceeding is available, and it is not free. Unlike a criminal trial, a civil fact-finder may in appropriate circumstances draw an adverse inference from the refusal to answer. So the choice is between handing the government a transcript and accepting a real disadvantage in the civil matter. That is a strategic decision requiring both sets of counsel in the same conversation, and it needs to be made before the deposition is noticed rather than the week of.
Timing tools exist. A stay of the civil matter pending resolution of the criminal case is sometimes available. Regulatory bodies will sometimes hold an inquiry in abeyance. Whether either is realistic depends on the posture, but neither happens without someone asking early.
Making a Referral That Actually Helps
A few things distinguish a referral that lands well.
Speed over selection. The most valuable thing is getting the client to competent counsel before the first interview or the first production, not finding the theoretically perfect lawyer three weeks later.
Match the forum. State and federal practice are genuinely different. So are the courts in Broward, Palm Beach, and Miami-Dade. A lawyer who is in those courtrooms regularly knows things about them that cannot be researched.
Match the subject. White-collar, regulatory, and fraud matters call for different experience from violent crime or DUI work. Where a client’s exposure involves a federal investigation, that is a specific practice rather than a variation on state court work.
Set the expectation about pace. Clients expect a criminal matter to resolve on a business timeline. It will not. Saying so early prevents the client from making bad decisions in pursuit of speed.
Stay in the case, appropriately. Advisors who remain engaged, within the boundaries counsel sets, are genuinely useful. You understand the client’s business and financial position better than any lawyer will, and that understanding frequently shapes both the defense and the resolution.
A Short Checklist
If a client tells you they are under investigation, or that an agent has made contact:
- Advise them to say nothing substantive to investigators until they have criminal counsel
- Tell them your conversation may not be privileged, before they tell you anything else
- Suspend all automatic document destruction, on your side and theirs
- Instruct preservation in writing
- Do not help construct an explanation, review the records together, or contact other participants
- Route any subpoena or document request through counsel
- Consider whether you need your own lawyer
- Get the client to appropriate criminal counsel this week, not this month
- Flag any parallel civil or regulatory matter so the timing can be managed
None of that is complicated. Almost all of it is counterintuitive in the moment, which is why it is worth having thought about before the call comes.
Adam Rossen is the founder of Rossen Law Firm, a criminal defense practice with offices across South Florida. He is a former Broward County Assistant State Attorney and has been AV Preeminent rated since 2015. More on the firm’s work is at [rossenlawfirm.com](https://www.rossenlawfirm.com/).
Sources
- Section 90.5055, Florida Statutes, Accountant-client privilege
- 26 U.S.C. § 7525, Confidentiality privileges relating to taxpayer communications
- United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)