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Mr. Bradt asserted that his letter to Mr. Kersting was
subject to the attorney-client privilege. Mr. Bradt declined to
disclose how he had obtained a copy of Mr. Sticht's letter to
Ms. Fisher.
Pursuant to the Court's order excluding witnesses from the
courtroom, Mr. Bradt had not been in the courtroom when either
Ms. Fisher or Mr. O'Neill had testified.82 Mr. Izen admitted that
he had disclosed Ms. Fisher's testimony to Mr. Bradt so that he
could prepare Mr. Kersting to testify in rebuttal of Ms. Fisher's
testimony. Similarly, Mr. Jones admitted that he had disclosed
Mr. O'Neill's testimony to Mr. Bradt in order to prepare Mr.
Bradt to testify in rebuttal. Mr. Sticht suggested that Mr.
Bradt's letter would tend to inflame Mr. Kersting against Ms.
Fisher.83
82 The Court had ruled that Mr. Bradt would not be allowed
in the courtroom until Mr. Kersting had testified.
83 Mr. Sticht's receipt and disclosure to the Court of
Mr. Bradt's letter to Mr. Kersting raise interesting questions
concerning the professional responsibilities of attorneys.
Compare Committee on Professional Responsibility, Ethical
Obligations Arising Out of an Attorney's Receipt of Inadvertently
Disclosed Information, 50 The Record of the Association of the
Bar of the City of New York 660 (1995), with Committee on
Professional Responsibility, The Attorney's Duties to Report the
Misconduct of Other Attorneys and to Report Fraud on a Tribunal,
47 The Record of the Association of the Bar of the City of New
York 905 (1992). The disclosures by Messrs. Izen and Jones that
were prompted by the introduction of Mr. Bradt's letter also
raise questions of possible conflict between the operation of
Rule 145 and the need to prepare a witness to testify and bring
documents in response to a subpoena duces tecum. Compare Berry
Petroleum Co. v. Commissioner, 104 T.C. 584, 609-611 (1995),
affd. on other issues without published opinion 142 F.3d 442 (9th
Cir. 1998), with Smith v. Commissioner, 92 T.C. 1349 (1989), and
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