In Uncategorized on 06/02/2017 at 15:52

I’ve often blogged The Phone Call. For the ur-text, see my blogpost thus entitled, 4/15/14, the 102nd anniversary of the sinking of RMS Titanic.

I therein described The Phone Call thus: “Every lawyer has received The Phone Call. It comes, for the most part, long after the case or matter is concluded, the file closed, and client forgotten (or nearly so). It comes, again for the most part, when one is finally packing up to go home after an exhausting day, and one dares to turn one’s mind to something cold, and clear, and containing an olive.”

The client’s voice is grating, loud. I omit the expletives and colorful metaphors in deference to the delicate constitutions of my readers. “You XYZ, you never told me about Pi R Square when you did (or didn’t) do ABC!”

Well, today I am pleased to report on Barry M. Smith & Rochelle Smith, Docket No. 14900-15, filed 6/2/17. In keeping with the point of this blogpost, it’s really to do with their counsel.

In a phone-a-thon with the parties after IRS counsel raised issues of conflict of interest between Barry & Rochelle, Judge Lauber suggested conflict waivers might solve the problem. Maybe Judge Lauber concluded the conflict was waivable, per ABA Model Rule 1.7(b).

Of course, there must be informed consent, expressed in writing. And what that means can be found in Rule 1.0(e). To save you from looking it up, the lawyer has to give the client “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Tax Court Rule 24(g) provides for conflict waivers in slightly different terms, but there’s no apparent conflict between Tax Court and ABA here.

Well, Judge Lauber suggested in the phone-a-thon that when Barry’s & Rochelle’s conflicted counsel got the waivers, they share same with IRS counsel.

Barry & Rochelle’s counsel says no.

“…petitioners filed a Motion for Reconsideration of Order, which the Court believes should properly be characterized as a status report. In that status report counsel for petitioners represent that the waiver agreements executed by petitioners include confidential information concerning legal advice and potential risks regarding the representation that is protected by attorney-client privilege. Counsel for petitioners accordingly submit that it would be inappropriate to disclose these documents to counsel for respondent.” Order, at p. 1.

In order for consent to be “informed consent,” every reasonably foreseeable possibility must be dealt with. And a duplicate original should be locked away very carefully. A fortiori, as my high-priced colleagues would say, any such consent would be replete with client confidences, potential trial strategies, evaluations of potential witnesses and evidence, in short, whatever could fend off The Phone Call.

Judge Lauber: “We accept the representations of petitioners’ counsel that they have secured the necessary consents and have thus complied with the requirements of Rule 24(g). Given the manner in which these waiver agreements have apparently been drafted, we do not believe it necessary that copies be supplied to respondent’s counsel.” Order, at pp. 1-2.

I submit that there is no other way to draft such waivers adequately and in compliance with the governing Rules. And avoid The Phone Call.


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