Thomas E. Johnston and Thomas E. Johnston, Successor in Interest to Shirley L. Johnston, Deceased, et al. - Page 18




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          Id. at 577-578.  In those circumstances, the court held that                
          asserting the privilege in furtherance of an affirmative defense            
          satisfied the first element for qualified waiver.  Id. at 581.              
          Other courts have similarly opined that raising affirmative                 
          defenses can result in a waiver of the attorney-client privilege.           
          The United States District Court for the District of Columbia,              
          for instance, has refused to uphold the privilege where the                 
          defense “of good faith reliance was affirmatively pleaded by the            
          party seeking to use the attorney-client privilege as a shield              
          against discovery.”  United States v. Exxon Corp., supra at 248.            
          Accordingly, the first requisite is met here if Mr. Johnston’s              
          reference to qualified experts is deemed to encompass legal                 
          counsel.                                                                    
               We conclude that to now narrow “advice of qualified experts”           
          solely to assistance received from the accountant aiding Mr.                
          Johnston in preparing his amended return would be to support a              
          belated characterization belied by the record.  We initially note           
          that Mr. Johnston’s reply for the 1989 tax year was filed on                
          September 22, 1997.  Petitioners’ opposition to the motions in              
          limine was filed on May 31, 2001, more than three and one-half              
          years later.  In addition, the incongruity between the original             
          plural “experts” and the subsequent singular “accountant” is                
          difficult to reconcile.                                                     








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