In Uncategorized on 12/08/2015 at 16:35

Nothing new in Tax Court today, no opinions, no designated hitters, and only four (count ‘em, four) pages of orders, each more sleep-inducing than the last.

So, ever in search of blogfodder, I turned back to my blogpost “Discovered Check,” 11/30/15. What has been percolating in my mind is the gap I perceive between how the law treats inadvertent disclosure by attorney (or Section 7525 adjutor) and inadvertent disclosure by a client, and an unsophisticated one, at that.

A concrete example took place this last weekend. A client (not a pro) replied to an e-mail I forwarded from the attorney for the counterparty on the deal. It was early morning, and the client may have missed morning coffee, so hit “reply all.”

Fortunately the client’s reply wasn’t significant, but I can’t help thinking “what if it had been?”

I suggest that the law take cognizance of the “least sophisticated consumer,” to borrow a concept from consumer protection law, not dwell upon steps taken by client to preserve privilege (of which privilege clients are generally only superficially aware), but permit timely clawback and direct non-user by the inadvertent recipient.

Hopefully tomorrow will bring fresh perspectives and insights from Tax Court.


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