Defendant Waives Attorney-Client Privilege by Asserting Reliance on FBAR Advice Defense

In United States v. Kerr, 2012 U.S. Dist. LEXIS 98836 (D AZ 2012), a case with two U.S. taxpayers and their lawyer as defendants, the court held that the indicted U.S. taxpayers' claims of reliance constituted a waiver of their attorney-client privilege with respect to communications with their lawyer, the one that was indicted with them.  (The indictment in the case was discussed in a prior blog, 2 Taxpayers and their U.S. Lawyer Indicted re Foreign Accounts (2/1/12).)  The Government had argued alternatively that the crime-fraud exception applied, but the holding on waiver mooted the need for the court to address that alternative holding.

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Due to Kerr's voluntary disclosure of these emails in support of a reliance defense, the Government argues that "[Kerr] cannot now claim that the government is only entitled to that which he is willing to disclose and nothing more." Doc. 80 at 6. The Court agrees. Under the Amlani test, Kerr effectively waived attorney-client privilege because: (1) he asserted the privilege as a result of some affirmative act; (2) he placed privileged information at issue; and (3) allowing the claim of privilege would deny the government access to vital information. See Amlani, 169 F.3d at 1195.

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