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respondent’s agents during an examination of Surgery Center’s tax
returns for 1999 and 2000), and the “dissemination” of the
exhibits to respondent. International responds:
“Even if true, not one of these alleged
disclosures operates as a waiver of the attorney-client
privilege attaching to Mr. Kelly’s letters. The reason
is simple: the privilege belonged at all times to SCG
[Surgery Center]. Consequently, only the entity
(through the Manager) has the power to effect a waiver.
The actions of SCG’s tax matters partner and
accountants could not waive SCG’s privilege.
As Professor Rice expresses the general rule:
Waiver of the attorney-client privilege can be
either express or implied. Express waivers are less
common. More often than not, waivers must be found by
implication from client conduct that is inconsistent
with any reasonable claim of confidentiality and that
would make maintenance of the privilege unfair. * * *
Rice, Attorney-Client Privilege in the United States, sec. 9:22,
at 56-57 (2d ed. 1999) (footnotes omitted); see, e.g., Hanson v.
AID, 372 F.3d 286, 293-294 (4th Cir. 2004) (“A client can waive
an attorney-client privilege expressly or through his own
conduct. Implied waiver occurs when a party claiming the
privilege has voluntarily disclosed confidential information on a
given subject matter to a party not covered by the privilege.”
(Citation omitted.)). Moreover:
Regardless of whether the client intended to waive
the attorney-client privilege protection by his
conduct, the client’s failure to take reasonable
precautions to preserve the confidentiality of
attorney-client communications can result in the
destruction of their privileged protection. * * *
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