[WSBARP] Litigator Ethics Violation?

[scott at scottgthomaslaw.com]

It's untypical behavior because it doesn't work, the same way that asking a
doctor or a hospital for someone's medical records doesn't work.  

>From one of my briefs opposing a motion to compel:

As the Texas Supreme Court has noted:          
Subjecting federal income tax returns of our citizens to discovery is
sustainable only because the pursuit of justice between the litigants
outweighs protection of their privacy. But sacrifices of the latter should
be kept to the minimum, and this requires scrupulous limitation of discovery
to information furthering justice between the parties which, in turn, can
only be information of relevancy and materiality to the matters in
controversy.
Maresca v. Marks, 362 S.W.2d 299, 301 (Tex.1962) 
Rule 26(b) (1) of the Federal Rules of Civil Procedure provides that
"[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense." Washington's appellate courts
have looked at analogous cases in looking at similar rules under our civil
rules. Many Courts have recognized that the unique nature of tax information
requires a different approach to discovery. Those courts have noted that
there is "a public policy of confidentiality of tax returns; to require
discovery, a party must establish relevancy and the court must find a
compelling need for the returns because the information is not otherwise
obtainable); Maddow v. Proctor & Gamble Co., Inc., 107 F3d 846, 853 (11th
Cir. 1987) citing Biliske v. American Live Stock Inc., 73 F.R.D. 124, 126 n.
1 (W.D.Okla. 1977) (public policy against unnecessary disclosure of tax
returns). In an employment discrimination context, the Maddow Court held
that the "plaintiffs were substantially justified in initially refusing
discovery" of tax returns. Id. See also Stein, Note: The Qualified Privilege
Against Discovery of Federal Income Tax Returns", 8 Pitt. Tex. Rev. 173
(2007-8). 
             Similarly, the Colorado Supreme Court held in an en banc
decision that because an individual files a personal injury lawsuit claiming
loss of earnings as damages does not automatically require disclosure of
years of tax returns. Alcon v. Spicer, 113 P.3d 735, 743 (Colorado 2005) The
Court noted that "[i]n light of this strong policy in favor of protecting
the confidentiality of tax returns, we have held that the party seeking
release of a tax return bears the burden of showing a "compelling need" for
the return." Id citing Losavio Robb, 579 P. 2d 1152, 1157 (1978)
            In determining the discoverability of tax returns, various
federal courts have utilized a two-part test. "To ensure a proper balance
between the liberal scope of discovery and the policy favoring the
confidentiality of tax returns, courts generally inquire, first, whether
"the returns are relevant to the subject matter of the action," and, second,
whether "there is a compelling need for the returns because the information
contained therein is not otherwise readily obtainable." Dunfee v. Truman
Capital Advisors LP , (D. California 2013) quoting A. Farber & Partners.,
Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006) (quoting Hilt v. SFC,
Inc., 170 F.R.D. 182, 189 (D. Kan. 1997)). "The party seeking production has
the burden of showing relevancy, and once that burden is met, the burden
shifts to the party opposing production to show that other sources exist
from which the information is readily obtainable." Kelley v. Billings
Clinic, No. CV 12-74-BLG-RFC-CSO, 2013 U.S. Dist. LEXIS 50370, at 16 (D.
Mont. Apr. 8, 2013) (citing Farber & Partners, 234 F.R.D. at 191).
             If so, then the court must consider whether a compelling need
for the return exists, because the information sought is not readily
obtainable from other sources. Id. The party seeking discovery of the tax
returns bears the burden of establishing relevance, while the resisting
party bears the burden of identifying an alternative source for the
information. Id.  

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Paul Neumiller
Sent: Friday, May 10, 2019 12:37 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Litigator Ethics Violation?

Listmates; I am curious if this is a violation of professional ethics by an
opposing attorney because it just doesn't pass the smell test for me.  I'm
not sure what I'd do even if it is a violation.  I represent a person in a
TEDRA action filed last year where the relief sought is based on my client's
low income.  As sealed documents, I submitted to the court the client's 2017
tax returns, current paystubs, and a financial statement.   The matter has
dragged on and now we're in 2019.  No discovery has been requested by either
party or ordered by the court.  

The client's accountant called the client and said that the opposing
attorney's office contacted the accountant directly and requested my
client's 2018 tax returns.  The accountant refused.  Is this ethical?  Is
this normal or typical litigator behavior?  If it is, what to do, if
anything?  Thanks for your input and guidance.