Attorney-at-Law

THE FIGHTING LAWYER

In Uncategorized on 03/29/2016 at 14:21

Sounds like a good line for your next advertisement, but it doesn’t fly in Tax Court.

We learn this from James L. Wilson & Vivien Wilson, et al., Docket No. 26547-13, filed 3/29/16. But Jim and Viv are just incidental to the story.

Please don’t get on my case just because this is another order from The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Illustrious, Industrious, Indomitable, Indefatigable, Incontrovertible, Implacable, Ineffable, Ineluctable (but never Impossible or Indefensible) Foe of the Partitive Genitive, Judge Mark V. Holmes.

He gets the interesting orders, unlike poor Ch J Michael B (“Iron Mike”) Thornton, who must soldier on until June 1, redesignating misdesignated pleadings, turning billets doux into petitions, and putting various erring parties, taxpayers and IRS counsel alike, back on the straight-and-narrow.

And no, I get no compensation from The Great Dissenter for putting his name in my blog, not even a cup coffee or a slice pizza.

In this episode, we have a New York lawyer, to whom I shall hereinafter refer as “CC”, who zealously defends the privilege of her client to maintain the secrecy of client confidences.

CC apparently was involved in, or maybe the brains behind, the Phoenix deals. If you’re scratching your head over this, it was a captive insurance deal that caused IRS to call “Scam!” And the Self-Insurance Institute of America, whatever that is, was in on the play. See my blogpost “The Front – Part Deux,” 12/18/15.

Howbeit, IRS wants CC to dish and tell all, notwithstanding her claim that the lentils she spills include client confidences.

Judge Homes: “We had this precise issue in a very similar Phoenix case, Avrahami v. Commissioner, that was tried by the same lawyers as this case. In the phone call, petitioners’ counsel said (as they had in Avrahami) that [CC] feels that she is under an ethical obligation imposed by Rule 1.6 of the New York Bar’s Rules of Professional Conduct to guard against disclosure of ‘confidential information.’ Since the material that the Commissioner seeks either contains, or is likely to lead to, information relevant to the characterization of [CC’s] arrangement as ‘insurance’ or ‘not really insurance,’ the Court finds it discoverable and nonprivileged. In Avrahami, we solved this problem by agreeing with the parties that a lawyer is under no obligation to fight production of such nonprivileged information if ordered to do so by a Court. We’ll do so again in this case.” Order, at pp. 2-3.

Since when can counsel agree about another attorney’s ethical responsibilities? And doesn’t a judge have an obligation to do an in camera on what is being spilled, to make sure it is nonprivileged? The privilege is the client’s, not the attorneys’, and not the court’s. And opposing counsel agreeing that something is nonprivileged doesn’t make it so.

Reminds me of an old joke: The only thing two members of a certain ethnicity can agree upon is how much a third person should give to charity.

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