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Counsel’s review a consultant’s report is a sound risk management strategy
If you hire a consultant to review your practice and the consultant finds a legal issue, then can the government demand a copy of the consultant’s report? The answer is almost certainly “yes.” Here are some tips for minimizing the risk when a consultant reviews your practice.
Many people expect to use the attorney-client privilege to protect work done by a consultant. You can’t. This is an important semantic point. The attorney-client privilege only protects work by attorneys. There is protection for some work by consultants, but it is narrower. Work by non-lawyers may be protected by something called the work-product privilege. There is a major limitation on the work-product privilege: it only applies to work done in anticipation of litigation. So if you are in the middle of an administrative law judge appeal, the work done by a consultant to assist in that hearing should qualify for protection. But if you just want to do a probe sample to see how well your professionals code, or to see if your ASC is operating compliantly, you need to recognize that a judge may conclude that work is not “in anticipation of litigation” and that report is therefore discoverable.
Despite this, I encourage clients to have reviews done under the privilege. Why? I like a chance to review and edit a report before it receives broad circulation. Imagine a consultant with major reservations about the legality of a particular activity.
Let’s consider three possible ways the consultant may articulate her concerns. First, the report may say “this practice is fraudulent.” Alternatively, the consultant could say “The government may characterize this practice as fraudulent. Finally, they expert could frame the advice quite different as: “I would recommend that you change this practice to X.” All three characterizations relay the consultant’s concern but I would much prefer defending a case with the third construction than the first.
If a consultant is engaged under the privilege and sends me a report with the first sentence, I can suggest a revision. The draft is probably discoverable, but fewer people will see it, and I will have a chance to talk with the consultant and increase the chance that the consultant will recognize the benefit of a more nuanced wording. In that case, counsel’s review is less about keeping the report confidential than it is about keeping the report from being harmful.
The bottom line is letting your counsel review a draft of a consultant’s report is a sound risk management strategy. One poorly worded report can make your life challenging.
Disclosure: Glaser reports no relevant financial disclosures.