- 14 -
authority to waive the attorney-client privilege on behalf of his
client. See, e.g., In re Von Bulow, 828 F.2d 94, 101 (2d Cir.
1987). We believe that, during the course of the Internal
Revenue Service’s (IRS’s) examination of Surgery Center’s income
tax returns for 1999 and 2000, Surgery Center’s representative
disclosed some or all of the contents of the exhibits to the IRS.
Although we have virtually no information concerning the scope of
that representative’s authority to represent Surgery Center, we
have no reason to believe that he (or she) exceeded the scope of
that authority. We, thus, conclude that he had the authority,
explicit or implicit, to disclose to the IRS the contents of the
exhibits. Since the IRS is a third party (that is neither an
agent or attorney of Surgery Center’s), such disclosure destroyed
the confidentiality of the exhibits and ended the privilege
premised on such confidentiality.
Alternatively, if the confidentiality of the exhibits had
not been destroyed previously, Moore’s disclosure of the exhibits
to respondent during the discovery phase of this case caused such
destruction and ended the privilege. It may be that the
disclosure was not voluntarily made by Surgery Center, if Moore
had no authority to make that disclosure. Nevertheless, Moore’s
ready access to the exhibits (Dr. Joffe described her position as
“equivalent of the president or chief operating officer of the
facility [Surgery Center] in terms of the day to day running”)
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