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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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