Attorney-at-Law

PRIVILEGED CHARACTERS – PART DEUX

In Uncategorized on 05/26/2015 at 23:04

Following up on his order of 5/21/15, more particularly described in my blogpost “Privileged Characters,” 5/21/15, Judge Lauber proceeds with the deconstruction of the claims of client-attorney privilege in Pacific Management Group, BSC Leasing, Inc., Tax Matters Partner, et al, 2015 T. C. Memo. 97, filed 5/26/15.

In the aforementioned order, Judge Lauber disposed of the privilege claims of Ernest S. Ryder, Esq., alleged crafter of the insubstantial tax dodge at the heart of the forty (count ‘em, forty) cases at bar.

Now he turns to Steven Dunning, Esq., attorney, guide, philosopher and friend. IRS subpoenas Steve, and he hands some stuff over. But not all, not by a long chalk.

Judge Lauber: “Mr. Dunning supplied a privilege log titled ‘Attorney Client Privileged E-mail Log.’ This log consists of a table with four columns. Column 1, captioned ‘From,’ lists the name of the person who sent the email. Column 2, captioned ‘To,’ lists the name or email address of the person or persons to whom the email was addressed. Column 3, captioned ‘CC,’ lists the name or email address of the person or persons who were copied on the email. Column 4, captioned ‘Email Date Sent,’ indicates the date and time when the email was sent. The log is 55 pages long and covers about 2,000 emails.

“The privilege log contains no other information.” 2015 T. C. Memo. 97, at p. 3.

A wee bit slim, no?

Well, the evidentiary rules of the USDCDC for non-jury trials seem to say so. “The attorney-client privilege applies to communications made in confidence (1) by a client to an attorney for the purpose of obtaining legal advice and (2) by an attorney to a client, where the communication contains legal advice or reveals confidential information regarding the client’s request for advice.” 2015 T. C. Memo. 97, at p. 4 (Citations omitted).

Burden is on the party asserting privilege, and blanket assertions don’t cut it. Party asserting privilege must establish each element for each privileged item. And while the Tax Court rules have no specific provisions, the FRE have plenty.

And Judge Lauber canvasses the FRE extensively, but Steve’s log doesn’t make the grade.

“The log Mr. Dunning supplied does not state the subject of any email; it does not describe the contents of any email; it does not indicate whether documents were attached to any email or what the contents of any such documents were; it does not describe the purpose for which any email or attached document was created; and it includes no facts indicating that any particular communication was intended to be confidential. It thus fails to establish each element of the attorney-client privilege.” 2015 T. C. Memo. 97, at pp. 7-8.

While the logger must steer between the Scylla of insufficient specificity, and the Charybdis of blowing the privilege altogether by telling too much truth, the Court can view the log in the light of the specific facts of the case.

When a lawyer serves as guide, philosopher and friend, but does not give specifically legal advice, that does not create client-attorney privilege.

Judge Lauber even gave Steve a second chance to fill out his log at oral argument, but Steve forwent the chance.

Steve, fork it over.

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