19-04-2014, 11:54 PM
The basic principle of folks depriving themselves of the attorney client privilege by virtue of their actions isn't new or controversial. For instance, if the bad (allegedly) guy says, "my lawyer told me to do it," or "my lawyer gave me bad advice," or sues the lawyer, the lawyer-client privilege is waived. In this context, however, the client is on the horns of a dilemma. Either he doesn't assert a defense, or he asserts and waives a right. This is comparable to a self-defense case; a client might forfeit his right to remain silent (and also be cross examined, and his credibility as a witness attacked) and assert the defense, or he must remain silent and hope for the best.
However in this particular context, the taxpayer has a specific defense which does not expressly require him to mention his reliance on legal advice, which apparently he tried to invoke. So it might seem a dangerous case, if upheld on appeal, or if applied in other areas of law. I notice that the court to which this case would be transferred on appeal, was the court that made the ruling that the taxpayer was relying on, so perhaps the taxpayer might have a better shot of winning the argument in the appellate court.
However in this particular context, the taxpayer has a specific defense which does not expressly require him to mention his reliance on legal advice, which apparently he tried to invoke. So it might seem a dangerous case, if upheld on appeal, or if applied in other areas of law. I notice that the court to which this case would be transferred on appeal, was the court that made the ruling that the taxpayer was relying on, so perhaps the taxpayer might have a better shot of winning the argument in the appellate court.