Attorney-at-Law

THE STEALTH SEQUESTER

In Uncategorized on 02/16/2022 at 16:23

Bobby Branch, mining and real estate expert, has his hands full, as IRS is playing the stealth hand, trying to set up little tête-à-têtes with individual partners in Green Valley Investors, LLC, Bobby A. Branch, Tax Matters Partner, et. al., Docket No. 17379-19, filed 2/16/22. And maybe so quick peek some documents and stuff.

Judge Christian N. (“Speedy”) Weiler granted Bobby’s crew a protective order, but IRS wanted reconsideration, and gets it.

First, IRS “…will initiate no further communications with the individual partners/investors of the donor partnerships until petitioner’s motions for protective orders are resolved, and … temporarily sequester any information received from an individual partners/investors or their attorneys pending resolution of petitioners’ motions for protective orders. Order, at pp. 1-2.

But then comes the good stuff.

“…petitioners and respondent are to jointly (or separately if preferred) advise the Court on the following issues: (1) how many of the individual partners/investors are represented by their own counsel (wholly separate from the TMP’s counsel); (2) to the extent respondent seeks to contact individual partners/investors who are not separately represented by an attorney, how respondent would handle any inadvertent disclosures of privileged information; (3) if respondent receives documents from individual partners/investors or their counsel, when and how would respondent be obligated to share those documents with petitioners’ counsel; and (4) what showing petitioners can make that the individual partners/investors, who are admittedly ‘constituents of the organization,’ and either ‘supervise[], direct[] or regularly consult[] with the TMP and/or organization’s lawyer concerning the matter, ha[ve] authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization’ as contemplated by comment [7] to ABA Model Rule 4.2.” Order, at p. 2.

And for those of my readers who haven’t memorized the comments to the Model Rules, here is comment [7] to ABA Model Rule 4.2.

“In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.”

IRS’ counsel has until March 14 to tiptoe through those tulips.

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