- 4 -
privilege; (2) whether, as between partners in a joint venture,
the attorney-client privilege attaches to advice to those
partners; (3) whether, prior to the trial of this case, Surgery
Center waived the privilege; and (4) whether Dr. Joffe, at one
time majority owner of Surgery Center and its manager, by his
testimony in this case, impliedly waived the privilege.
Respondent has taken no position on the claim of privilege
and retains his right to object to the exhibits and any testimony
of Kelly.
The Court has made an in camera inspection of the exhibits
and Kelly affidavit.
Discussion
To dispose of the motion, we must answer the following
questions: (1) Would admission of the exhibits and the Kelly
testimony disclose a privileged communication between client and
attorney; (2) assuming it would, who has held, and who now holds,
the privilege; and (3) has the privilege been waived?
Attorney-Client Privilege
In Bernardo v. Commissioner, 104 T.C. 677, 682 (1995), we
provided the following pertinent summary:
The attorney-client privilege “applies to
communications made in confidence by a client to an
attorney for the purpose of obtaining legal advice, and
also to confidential communications made by the
attorney to the client if such communications contain
legal advice or reveal confidential information on
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011