Securing Your Practice: What Every Attorney Needs to Know About Physical Security in Today's Climate
Notices from the Fog | Waterloo Security Intelligence | TX PI License C-19041
Most criminal defense attorneys know what a Kovel agreement is. Far fewer use one consistently — and that gap is costing their clients.
If you're bringing outside investigators, forensic accountants, or technical experts into your cases without a Kovel structure in place, the work product those professionals produce is potentially discoverable. Everything they find, every report they write, every communication they have with you about the case — exposed.
This post is about closing that gap.
The Origin
In 1961, the Second Circuit Court of Appeals decided United States v. Kovel, establishing that attorney-client privilege could extend to third-party professionals hired by an attorney to assist in rendering legal advice. The accountant in that case — Louis Kovel — was employed by a law firm and communicated with clients about tax matters the attorneys needed to understand.
The court's reasoning was straightforward: just as an interpreter doesn't waive privilege by translating a client's words, a professional hired to help the attorney understand complex subject matter doesn't waive privilege by doing their job.
The doctrine has since been applied broadly — to forensic accountants, financial analysts, expert witnesses, and increasingly, to licensed private investigators.
What a Kovel Agreement Actually Does
A properly structured Kovel agreement establishes that the third-party professional — in this case, your investigative firm — is being engaged by you, the attorney, to assist you in providing legal representation to your client.
The work product that professional produces is then protected under your attorney-client privilege and attorney work product doctrine. It cannot be subpoenaed by opposing counsel. It cannot be compelled in discovery. It is disclosed only when and if you choose to disclose it.
Without that structure, a private investigator's reports, surveillance logs, witness interview notes, and communications with you are potentially fair game.
Why It Matters More Than You Think
Consider a criminal defense scenario. Your client is charged with financial fraud. You hire an investigator to trace the flow of funds, document business activity, and locate witnesses who can support the defense narrative.
Without a Kovel agreement, opposing counsel could potentially subpoena your investigator's entire file — every lead followed, every dead end documented, every theory explored and discarded. Your entire investigative strategy is now visible.
With a Kovel agreement in place, that file belongs to your work product. Your strategy stays yours.
The same logic applies in cases involving surveillance of complainants, background investigations of government witnesses, social media intelligence, and asset tracing in financial crime matters.
How to Structure It
A Kovel agreement doesn't need to be complex. At its core it needs to:
- Establish that the investigative firm is being retained by the attorney, not the client directly
- Specify that the purpose of the engagement is to assist the attorney in rendering legal advice and representation
- Make clear that all work product flows to the attorney and is subject to privilege
- Include appropriate confidentiality provisions
The retainer or engagement letter between the attorney and the investigative firm should reflect this structure. Billing should flow through the attorney's trust account or be billed directly to the attorney rather than the client.
If you're unsure whether your current investigative engagement agreements accomplish this, have your malpractice carrier or ethics counsel review them. The exposure from getting this wrong is significant.
WSI and Kovel-Protected Engagements
Waterloo Security Intelligence routinely operates under Kovel agreements for criminal defense attorneys across DFW and statewide Texas. Our engagement structure is designed to support privilege protection from the outset — the retainer, the reporting chain, and the billing structure all reflect the Kovel framework.
When we're working your case, what we find stays in your hands.
Surveillance on a complaining witness. Background intelligence on a government informant. Financial tracing in a fraud defense matter. Witness location and pre-interview intelligence. All of it protected — disclosed only at your direction.
The Bottom Line
A Kovel agreement is a one-page structural decision that protects everything that follows. If you're engaging investigators without one, you're leaving your work product exposed and your client underserved.
If you'd like to discuss how WSI structures Kovel-protected engagements for criminal defense matters, the conversation takes 15 minutes.
Rob Colvin — (214) 728-8975 rcolvin@waterloosi.com Waterloo Security Intelligence | Addison, Texas | TX PI License C-19041
Notices from the Fog is a publication of Waterloo Security Intelligence. Content is for informational purposes only and does not constitute legal advice. Attorneys should consult qualified ethics counsel regarding privilege structures in their jurisdiction.
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