Attorney-at-Law

TAG ON PRIVILEGE

In Uncategorized on 02/02/2022 at 20:14

Judge Travis A. (“Tag”) Greaves gives us a quick tour through client-attorney privilege, as extended to preparers by Section 7525, in Estate of Mary K. Sakioka, Deceased, Jeremy T. Sakioka and Traci Kiyama, Executors and Co-Trustees, Docket No. 7132-19, filed 2/2/22.

It’s the usual post-mortem family trust/flp stash for the family’s cash, securities and income-producing realty, the good old “never sell nothing never,” of grandma/dad’s last words.  IRS wants the family’s lawyers and advisers to bukh, as good-faith reliance is clearly the plat du jour.

IRS serves up the usual waiver, with a chaser of business-advice-not-legal-advice, and sword-shield at no extra charge.

“A party impliedly waives the attorney-client privilege when it makes an argument the opposing party can refute only by reference to the privileged communications.” Order, at p. 6. OK, good-faith reliance can go off on what your lawyer told you. But the magic word is “only.” ” However, privileged communications do not become discoverable where they simply are relevant to issues raised in the litigation or where they are only one of several forms of indirect evidence about an issue.” Idem., as my expensive colleagues say. There’s more than one way to skin a cliché, and only if the Sakiokas can adduce no plausible alternative source to their good faith other than the advice of the 7525 brigade, the 7525s stand mute.

Some stuff claimed to be privileged was already turned over to IRS. Judge Tag Graves passes on that, until he can figure out whether the documents were shared with family and employees, such that they were so broadly disseminated to nonparties as to lose privilege. On that score, Judge Tag Graves will do an in camera on that issue, and the fairness doctrine issue.

Fairness says a party can’t disclose what part of privileged matter they like, and suppress that which they don’t like. This is son-of-completeness; refer to a document, and the whole thing goes in, not just the parts you like.

While Judge Tag Greaves doesn’t decide a lot here, he lays out the groundwork. So this is a good cheat-sheet for basic preparer-privilege issues.

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