Barry E. Moore and Deborah E. Moore - Page 14

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          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”)              






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