- 18 - 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.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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