Opinion
17483-21
02-07-2024
ARDAN HOLDINGS, LLC ARDAN INVESTORS, LLC, TAX MATTERS PARTNER Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge
This case arises from a contested donation of a conservation easement. We're set to try it at a special session of the Court starting on February 26, 2024, in Columbia, South Carolina. The parties continue to file pretrial motions, and on February 5, respondent moved for us to review the sufficiency of petitioner's supplemental responses to requests for admission.
This dispute arises from requests for admission 10-18. These all asked about information regarding the activity (or lack of activity) of Mack Powell and Rhonda Fortson regarding the possible disposition, development, and financing of the subject property. To all these requests petitioner replied that Powell and Fortson were represented by separate counsel.
We ruled that this is not a valid objection. Jan. 26, 2024 order. Powell and Fortson are the children of the woman who herself inherited the property back in 1960. They contributed the property to Ardan. They received an interest in the partnership. They received K-1s from the partnership. The requests all seek admissions regarding their use of the property. They share a common interest in this case with Ardan and their partners. That means that under our Rule 90(c), petitioner was under an obligation to make "reasonable inquiry" to them to admit or deny the request. That these two partners are represented by their own counsel does not make asking them questions unreasonable. And, given the importance of valuing the property to this case, asking them about any uses or possible sales of the property for years before Ardan was organized is likewise not a reasonable objection.
Petitioner did supplement its response to each of these RFAs. But it did so by asking Powell and Fortson's lawyer, not Powell and Fortson themselves. Model Rule of Professional Conduct 4.2 does, of course, prohibit a lawyer from directly contacting a represented party. Its purpose, as set out in comment 1, is to prevent overreaching, interference with the client-lawyer relationship, and the creation of uncounseled disclosure of information.
Powell and Fortson are, as partners in Ardan Holdings, parties to this case. The Court notes that respondent chose not to serve RFAs on them directly, but served them on petitioner instead. We, however, ordered petitioner to make reasonable inquiry of Powell and Fortson, not of Powell and Fortson's lawyer. Their lawyer represents them in this litigation, but he does not have the same knowledge or competency to respond to these requests for admissions.
So we'll try again. And to be clear, this order is intended to be a "court order" under Model Rule 4.2. It is therefore
ORDERED that respondent's February 5, 2024 motion to review the sufficiency of answers or objections to request for admissions is granted as to RFAs 10-18, and on or before Monday, February 12, 2024, petitioner shall serve on respondent's counsel answers to those requests after making inquiry of Powell and Fortson, not their lawyer.