Showing 308 of 308 results

Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 28.2

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; finding that a litigant's assertion of good faith did not trigger a waiver; "Defendant Keltz [General Counsel] made a partial disclosure of a confidential conversation when he stated that Littman [Outside Lawyer] advised Defendant Major that it was not necessary to update a valuation, but this does not amount to a selective disclosure that requires an implied-waiver finding because, in order 'to effectuate [such] a waiver, the selective disclosure must have occurred in an adversarial context, i.e., one that has the potential to cause legal prejudice to the proponent's adversary.'. . . Here, Defendant Keltz's partial disclosure was made at deposition and not in front of a factfinder.")

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal NY

Chapter: 28.2

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *20, *21 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "There are two primary ways in which a party can waive the attorney-client privilege. First, a party may implicitly waive the privilege by asserting a claim or defense that relies on privileged materials as its basis."; "Second, and more relevant here, a party may expressly waive the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-03-26 Federal CA B 3/14

Chapter: 28.2

Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *12-13 (D. Md. Mar. 15, 2013)
(adopting the Rhone [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] rather than the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] approach; "Express, or actual, waiver occurs where confidential communications are disclosed to a party outside the attorney-client relationship, while implied waiver occurs where a litigant puts the substance of a confidential communication at issue in the litigation or by selective disclosure, where a litigant discloses a portion of the confidential communication and invokes the privilege to shield the remainder.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal MD B 3/14

Chapter: 28.2

Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *15 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "Implied waivers may be found where a party seeks to use the privilege as both a sword and shield, as, for example, where a client seeks to rely on counsel's advice as an element of a claim or defense, or discloses only portions of such communications.")

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 28.2

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)
("The Fourth Circuit has explained the general waiver doctrine as follows: 'A client can waive an attorney-client privilege expressly or through his own conduct. Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. However, an attorney may not unilaterally waive the privilege that his client enjoys. The ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004) (emphasis in original) (citations and internal quotation marks omitted).")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 28.2

Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *5 n.2 (C.D. Cal. Nov. 14, 2012)
("'The 'waiver-by-affirmative reliance' doctrine is also known as 'the waiver-by-affirmative-use' doctrine.'")

Case Date Jurisdiction State Cite Checked
2012-11-14 Federal CA B 7/13

Chapter: 28.2

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 484 (Va. Cir. Ct. 2010)
("This rule of law is for the protection of the client, who may waive the privilege through express or implied conduct." [citing Seventh District Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971)])

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 28.2

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
("The attorney-client privilege may be expressly or impliedly waived by the client's conduct. Banks, 274 Va. at 453-54, 650 S.E.2d at 695-96; Edwards, 235 Va. at 509, 370 S.E.2d at 301.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 28.2

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 (W.D. Va. 2009)
("'A client can waive an attorney-client privilege expressly or through his own conduct.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 294 (4th Cir. 2004).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA

Chapter: 28.2

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)
("Settled Supreme Court case law similarly appears to establish that a waiver of the privilege requires no particular formality and may be either express or implied from the client's conduct. Blackburn v. Crawford's Lessee, 70 U.S. 175, 194, 18 L. Ed. 186, 194 (1865); Glover v. Patten, 165 U.S. 394, 407-8, 17 S. Ct. 411, 416, 41 L. Ed. 760, 768 (1897).")

Case Date Jurisdiction State Cite Checked
2006-12-08 Federal VA

Chapter: 28.2

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.3 (W.D. Va. 2005)
("Implied waiver, for example, occurs when the party claiming the privilege makes any disclosure of a confidential communication to any individual who is not embraced by the privilege. In re Grand Jury Subpoena, 341 F.3d at 336.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 28.2

Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004)
("A client can waive an attorney-client privilege expressly or through his own conduct. . . . Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. . . . However, an attorney may not unilaterally waive the privilege that his client enjoys." (emphasis in original))

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal N 11/05

Chapter: 28.2

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("Furthermore, 'the privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.'" [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)])

Case Date Jurisdiction State Cite Checked
2002-01-01 State VA

Chapter: 28.2

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)
("The attorney-client privilege may be waived by the client either expressly or implied from the client's conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra. at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10.")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA

Chapter: 28.2

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)
("The privilege may be expressly waived by the client or implicitly waived as a result of the client's conduct. Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)]")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA

Chapter: 28.2

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)
("The Court continues, 'The privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.' Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988) (citing 8 Wigmore, Evidence, § 2291 at 554 (McNaughton rev. 1961))]")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA

Chapter: 28.2

Case Name: Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)
("As a general rule, implied waiver occurs when the party claiming the privilege has made any disclosure of a confidential communication to any individual who is not embraced by the privilege.")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal

Chapter: 28.16

Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "I find that when the Board released the Bullard Report, it waived the attorney-client privilege as to the entire scope of the investigation performed by Attorney Bullard, and all materials, communications, and information provided to Attorney Bullard as part of her investigation.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN

Chapter: 28.17

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)
(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "The Debtors are walking a fine line between arguing that they sought and received the advice of counsel when negotiating and evaluating (and ultimately approving) the RMBS Trust Settlement, and that they relied on the advice of counsel in approving the RMBS Trust Settlement. For example, the Debtors claim they only want to introduce the fact that the critical negotiations were handled by the Debtors' attorneys, without delving into the substance of those negotiations (to the extent they were undertaken by the Debtors' attorneys). . . . Yet, the Debtors' RMBS Reply Briefs are replete with statements such as '[t]he directors were entitled to rely on these [legal and financial] experts' advice and counsel' and 'ResCap LLC's directors . . . relied on advice and presentation materials from their advisors that were fair, accurate, and adequate to the task.'" (internal citation omitted); "The attorney-client privilege is not waived if the Debtors argued that they sought the advice of counsel, among other actions, in an effort to reasonably educate themselves as to the merits of the settlement. However, after having asserted the attorney-client privilege throughout discovery, the Debtors cannot now introduce the substance of whatever advice it sought and received in order to demonstrate that it exercised proper business judgment in approving the RMBS Trust Settlement, even for the purpose of rebutting a 'due care' challenge.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 28.20

Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)
October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date Jurisdiction State Cite Checked
2018-08-01 Federal

Chapter: 28.20

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date Jurisdiction State Cite Checked
2017-03-20 Federal VA

Chapter: 28.702

Case Name: Heth v. Satterlee Stephens Burke & Burke LLP, No. 650379/2015, 2019 NY Slip Op 30555(U) (N.Y. Sup. Ct. Mar. 5, 2019)
May 22, 2019 (PRIVILEGE POINTS)

"Clients Suing Their Lawyers For Malpractice Risk A Subject Matter Waiver"

Clients and lawyers asserting claims against each other can waive privilege protection without disclosing any privileged communications. But such implied or "at issue" waivers often require balancing of participants' interests. For instance, some courts hold that clients suing their former lawyers for malpractice must disclose their communications with successor counsel. Other courts take the opposite position, finding such intrusion inappropriate.

In Heth v. Satterlee Stephens Burke & Burke LLP, No. 650379/2015, 2019 NY Slip Op 30555(U) (N.Y. Sup. Ct. Mar. 5, 2019), the court dealt with a malpractice defendant's efforts to discover communications between the plaintiff former client and the defendant's co-counsel – not its successor counsel. The court allowed such discovery, explaining that the disclosure of such communications between plaintiff client and the malpractice defendant's co-counsel was "essential" to defendant's defense that it "did not proximately cause [client's] alleged damages" – because the client had relied on co-counsel's rather than defendant's advice. Id. at 3.

While clients contemplating malpractice cases against their former lawyers may be able to protect their communications with successor counsel, they normally should not expect the same treatment for their communications with defendant's co-counsel during the pertinent time.

Case Date Jurisdiction State Cite Checked
2019-03-05 State NY
Comment:

key case


Chapter: 28.702

Case Name: Moody v. Hill, A18A1011, 2018 Ga. App. LEXIS 241 (Ga. App. April 30, 2018)
(holding that a malpractice defendant could not obtain documents from co-counsel Holland & Knight, because the plaintiff had not sued Holland & Knight for malpractice; "The trial court found it undisputed that Holland & Knight and the appellees together had represented the appellants in the litigation."; "Certainly, the appellants waived the attorney/client privilege between themselves and the appellees. The issue presented here though is whether a client, who sues an attorney for malpractice and thereby waives the attorney/client privilege, also impliedly waives the attorney/client privilege with regard to a third party attorney also engaged by the client but not sued by the client."; "In the instant case, we find no basis for finding the appellants impliedly waived the attorney client privilege with regard to the non-party Holland & Knight. The trial court found it undisputed that Holland & Knight and the appellees together represented the appellants in connection with the matters which are the subject of the appellants' claims. However, the appellants actually engaged Holland & Knight after the legal advice and services provided by the appellees that constitute the subject of the appellants' complaint against the appellees. Holland & Knight were involved in dealing with the consequences of the alleged malfeasance of the appellees.")

Case Date Jurisdiction State Cite Checked
2018-04-30 State GA

Chapter: 28.702

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "Based on our analysis of existing Illinois law, as set forth above, we find that documents within Daily, Stinson, and Padberg's files, as set forth in their respective privilege logs, may contain communications that are required to be examined in order to truthfully resolve factual and legal issues that have been injected into the instant litigation by the plaintiffs. . . . Although the plaintiffs are not asserting a cause of action for legal malpractice against Greensfelder, they are asserting a cause of action for breach of fiduciary duty based on Greenfelder's role as their prior counsel and its use of information acquired in that role in its representation of an adverse party leading up to, during, and in settlement of the Missouri litigation. An essential element of a claim for breach of fiduciary duty is damages approximately caused by the breach. . . . there is an issue of whether Greensfelder, Daily, Stinson, and Padberg contributed to cause the Missouri litigation and its outcome and the relative contribution of each to the plaintiffs' damages."; "In order to truthfully resolve the factual and legal issues necessary to adjudicate the causation element of the plaintiffs' claim against Greensfelder, all communications between the plaintiffs and Daily, Stinson, and Padberg that are related to the role Daily, Stinson, and Padberg played in the events leading up to and including the plaintiffs' defense of the Missouri litigation are discoverable pursuant to the 'at issue' exception to the attorney-client privilege. . . . documents evidencing communications between the plaintiffs and Daily, Stinson, and Padberg that are relevant solely to the reasonableness of the plaintiffs' decision to settle the Missouri litigation, and the amount of that settlement, remain privileged because, for the above-stated reasons, they are not 'required to be examined in order to truthfully resolve' the causation element of the plaintiffs' claim against Greensfelder for breach of fiduciary duty. Instead, they are relevant to the issue of the reasonableness of the settlement of the Missouri litigation, which, as explained above, is subject to an objective measure of proof.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 28.702

Case Name: Newsome v. Lawson, Civ. No. 14-842-RGA-MPT, 2017 U.S. Dist. LEXIS 203691 (D. Del. Dec. 12, 2017)
(applying the Teleglobe standard, and finding that a liquidating trustee could obtain privileged documents from a lawyer that jointly represented the bankrupt company and its parent; also finding that the Eureka case did not change that result; also finding that the "breach of duty exception" allowed the lawyer for a joint client to obtain privileged communications between either of the joint client and their lawyer; "The magistrate judge relied on Teleglobe [In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007)] to hold that neither the adverse-litigation exception nor the breach of duty exception were proper grounds to compel Defendants' production of privileged documents from the joint representation of Mahalo USA and Mahalo Canada. . . . Other courts addressing the same factual scenario have uniformly reached a different conclusion: A joint client suing only the joint attorney may compel disclosure of privileged documents from the joint representation."; "In a lawsuit between a joint client and the joint attorney, all of the courts found to have addressed the issue relied on the adverse-litigation exception to compel disclosure of the privileged communications from the joint representation."; ". . . a joint attorney may not withhold from one joint client privileged communications from the joint representation, even if the other (non-party) joint client refuses to consent to the disclosure."; "Ultimately, the documents Plaintiff seeks would not be disclosed to a third party, but would remain among the joint clients and the joint attorney that participated in the joint representation. Accordingly, it is not enough that Mahalo Canada, a non-party joint client, objects to the disclosure of privileged documents from the joint representation. The court finds that the magistrate judge erred in holding that the adverse-litigation exception was not a proper legal basis for compelling disclosure of privileged documents from the joint representation."; "The adverse-litigation exception does not entitle Plaintiff to unbounded discovery. A joint client is entitled to only those communications relevant to the matter of common interest that was the subject of the joint representation."; "Although the parties do not dispute that there was a joint representation, they have not identified the matter of common interest that was the subject of the joint representation. It is possible that Mahalo Canada has some privileged documents which reference Mahalo USA, but which are not the subject of the joint representation. Because the parties did not identify the matter of common interest, it is difficult to determine where exactly that line would be drawn. Nevertheless, once the parties have agreed on the matter of common interest, Plaintiff is entitled to all communications that fall within the scope of the joint representation, including communications where one joint client is not present.")

Case Date Jurisdiction State Cite Checked
2017-12-12 Federal DE
Comment:

key case


Chapter: 28.702

Case Name: Windsor Securities, LLC v. Arent Fox LLP, 16 Civ. 1533 (GBD) (GWG), 2017 U.S. Dist. LEXIS 127984 (S.D.N.Y. Aug. 11, 2017)
(in an opinion by Judge Gorenstein, holding that a defendant law firm sued for malpractice could not obtain the former client's communications with replacement counsel; "New York courts have defined 'at issue' waiver as occurring 'where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information.'"; "'New York courts have frequently cited to federal case law in applying the 'at issue' waiver doctrine. . . . Consistent with this practice and because we discern no difference in these two courts' applications of the 'at issue' waiver doctrine, we cite to both state and federal law.'"; "Because Windsor does not intend to use any of its communications with replacement counsel as evidence in this case -- and in any event will now be precluded from doing so -- there is no obvious unfairness to defendants in upholding Windsor's claim of privilege. Indeed, case law frequently ends the inquiry into 'at issue' waiver once it is established that the party does not intend to use such materials as proof."; "Federal court decisions from this district have similarly held that defendants in a legal malpractice case were not entitled to invade the attorney-client privilege for successor counsel.")

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal NY

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)
(holding that plaintiff's malpractice case against its former lawyer impliedly waived opinion work product protection for documents created by replacement counsel; "Monitronics has alleged that the Veasley verdict was the result of Defendants' malpractice in their representation of Monitronics before they were discharged. In doing so, Monitronics must show, among other things, that the alleged malpractice was the proximate cause of the damage alleged. Monitronics has directly implicated the relevance of the Production Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "Defendants have asserted several affirmative defenses to Monitronics' malpractice claim, including lack of causation and comparative negligence, and they have filed a notice seeking to apportion fault to successor counsel. 'It would undermine the most basic concepts of fairness to allow [Monitronics] to claim [Defendants are] liable for the entirety of their damages, while precluding the discovery of contrary evidence.'. . . This is especially true considering that the Court's review of the Production Documents submitted for in camera review disclosed specific reasons for the fact and magnitude of the Veasley verdict based on reasons other than Defendants' alleged professional conduct."; "The Court has reviewed the opinion work product materials submitted by Monitronics and the Nonparties. The Court finds in the particular circumstances of this legal malpractice case -- where Plaintiff claims the Defendant lawyers are responsible for the entirety of an adverse jury verdict issued months after Defendants were replaced by successor counsel, where Defendants did not participate in the trial or the unsuccessful appeal, and where a number of the submitted opinion work product materials are central to the causation issue in this case -- that portions of the Productions Documents submitted for review are required to be produced.")

Case Date Jurisdiction State Cite Checked
2017-01-18 Federal GA

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2016 U.S. Dist. LEXIS 166402 (N.D. Ga. Dec. 2, 2016)
(ordering malpractice plaintiff suing its former lawyer to turn over privileged communications with successor counsel; "In most malpractice cases involving implied waiver of the attorney-client privilege, the issue is whether the privilege between the plaintiff-client and the defendant-attorney has been waived. This case presents a different question. Monitronics has not asserted the attorney-client privilege over its communications with Defendants. Instead, Monitronics asserts the privilege with respect to its communications with other lawyers who worked on the Veasley case after Defendants were terminated. The question is whether Monitronics, by suing Defendants for malpractice, has waived its privilege with respect to these documents."; "Monitronics has implicated the relevance of the Requested Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "The Court also finds that, subject to certain exceptions noted below, the Requested Documents are vital to Defendants' defense. The court in Lyon reasoned that, absent production of communications between the plaintiff-client and subsequent counsel, defendant-attorneys 'would be effectively precluded from challenging the causation and actual damages prongs for legal malpractice,' because they would not be allowed to advocate fully their defense that other persons were responsible, in whole or in part, for plaintiff's damages."; "For example, if Monitronics' successor counsel chose not to engage in all or part of the discovery it claims Defendants should have conducted regarding Okrah, Veasley's son, Warren's husband, and Veasley's neighbors, the reason for not engaging in this discovery may discredit Monitronics' allegation that it was malpractice for Defendants not to do so. If successor counsel was able to, but did not, procure ATM or McDonald's security video footage for March 29, 2006, that failure may have proximately caused some of Monitronics' damages. If successor counsel made pretrial and trial decisions independent of the conduct Monitronics alleges constitutes malpractice, those decisions may undercut Monitronics' malpractice claim against Defendants. It would be odd -- if not unfair -- to preclude Defendants from discovering documents showing whether successor counsel or insurers had views of the evidence and trial presentation that aligned with Defendants'. These kinds of strategy evaluation and litigation decision materials are largely, if not exclusively, the kind of documents maintained in the file of Monitronics and its lawyers and not available to Defendants unless produced.")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal GA

Chapter: 28.702

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

Case Date Jurisdiction State Cite Checked
2015-01-30 State CA

Chapter: 28.702

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)
(in a malpractice case, finding that plaintiff had not triggered an at issue waiver; holding that if the plaintiff sought fees as damages, redaction may result in the inability to recover those fees; "[S]eeking attorneys' fees in a malpractice action is, in itself, insufficient to put damages at issue for waiver purposes.")

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal IL B 7/14

Chapter: 28.702

Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at *2-3, *5-6, *8, *12 (N.D. Cal. Jan. 8, 2014)
(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date Jurisdiction State Cite Checked
2014-01-08 Federal CA B 7/14

Chapter: 28.702

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)
(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 28.702

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)
(plaintiff's malpractice action against a lawyer "put the privileged information held by [plaintiffs' replacement counsel] directly in issue [because] any such information is part of one continuous course of legal representation that the Plaintiffs pursued, first with the Defendant and then with [replacement counsel]")

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The court begins by noting, again, that the Petitioner has intentionally waived the attorney-client privilege with respect to his former counsel's conduct and their communications put into issue and disclosed by his § 2255 Motion and supporting documentation, and he does not dispute this waiver or the government's need for discovery into these privileged communications. . . . Accordingly, under VRPC 1.6(b)(2), the Petitioner's former counsel may reveal information reasonably necessary to respond to allegations concerning their representation of the Petitioner, in connection with this habeas proceeding, without violating the VRPC.")

Case Date Jurisdiction State Cite Checked
2017-03-20 Federal VA

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date Jurisdiction State Cite Checked
2017-03-20 Federal VA

Chapter: 28.703

Case Name: Schrader v. United States, 5:16-CV-5110-KES, 2016 U.S. Dist. LEXIS 176551 (D.S.D. Dec. 21, 2016)
("The American Bar Association, however, has issued an opinion advising that former counsel confronted with a client making ineffective assistance of counsel claims, consistent with their ethical obligations (1) may not disclose information imparted to him or her in confidence without first obtaining the informed consent of the former client; and (2) may only disclose such information in 'court-supervised testimony.' ABA Comm. on Eth. and Prof'l Responsibility, Formal Op. 10-456 (July 14, 2010).")

Case Date Jurisdiction State Cite Checked
2016-12-21 Federal SD

Chapter: 28.703

Case Name: Cross v. United States, Case No. 5:16-cv-06097, Case No. 5:15-cr-00079, 2016 U.S. Dist. LEXIS 122868 (S.D.W. Va. Sept. 12, 2016)
(holding that a criminal defendant's ineffective assistance of counsel claim allows his former lawyer to disclose confidences, but requiring the lawyer to file an affidavit before disclosing the confidences; "Thus, the court ORDERS Movant's counsel, Mr. E. Ward Morgan, to file within thirty (30) days from the date of this Order an affidavit responding to Movant's specific claims of ineffective assistance of counsel, including his claim that counsel was not properly trained or experienced at criminal law. The affidavit shall incorporate all of the information Mr. Ward believes is necessary to fully respond to the claims and shall include as attachments copies of any documents from his file specifically addressing the matters raised by Movant in his motion. To the extent that these documents address other aspects of Mr. Ward's representation of Movant, which are not pertinent to a resolution of the § 2255, they may redacted. In preparing the affidavit and attachments, counsel should disclose only that information reasonably necessary to ensure the fairness of these proceedings. The court advises Movant, however, that notwithstanding the limitations set forth herein, Mr. Morgan will be given considerable leeway in determining what information is necessary to a fair resolution of the ineffective assistance of counsel claim.")

Case Date Jurisdiction State Cite Checked
2016-09-12 Federal VA

Chapter: 28.703

Case Name: Mitchell v. United States, Case Nos. 2:15-cv-05501 & 2:13-cr-00201, 2016 U.S. Dist. LEXIS 5758, at *4-5 (S.D. W. Va. Jan. 19, 2016)
("[T]he ABA acknowledges in the opinion [LEO 456] that 'an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,' but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to 'court-supervised' proceedings, rather than ex parte meetings with the non-client party.")

Case Date Jurisdiction State Cite Checked
2016-01-19 Federal WV B 7/16

Chapter: 28.703

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
(holding that ineffective assistance of counsel claim resulted in a broad waiver of privilege and work product, but did not waive opinion work product;"Bittaker [Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003)] recognized that law, like life, often requires that a choice between competing alternatives be made. And so, the court held, a defendant in a criminal who had filed a postconviction claim for ineffective assistance of counsel case had to choose between protecting the confidentiality of communications with his criminal defense lawyer or pursuing his claim. If he chose to abandon his claim, the confidentiality of his communications would be preserved. If he chose to pursue his claim, the confidentiality of those communications would vanish. But choose he must. . . . The same is true for Mr. Patrick [Plaintiff]. And like the plaintiff in Bittaker, he cannot have both objects of his desire. That the choice between pursuing a claim or preserving the confidentiality of communications with one's lawyer presents difficult and incompatible alternatives does not, as Bittaker recognized, make it impermissible to require that the choice be made. The legal system 'is replete with situations requiring the making of difficult judgments as to which course to follow.'. . . The fact that Mr. Patrick had to make such an election does not entitle him to judicial shelter from the consequences of his choice.")

Case Date Jurisdiction State Cite Checked
2015-10-28 Federal IL

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)
(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "When a petitioner expressly denies waiver of the privilege after asserting an ineffective assistance of counsel claim, the claim cannot stand unless the petitioner permits disclosure of communications necessary for the respondent to adequately defend against the ineffective assistance of counsel claim. 'The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it.'")

Case Date Jurisdiction State Cite Checked
2015-05-11 Federal WI

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)
(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "Implied waiver can be found when a petitioner asserts ineffective assistance of counsel in a habeas case.")

Case Date Jurisdiction State Cite Checked
2015-05-11 Federal WI

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)
(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[I]t is hereby ORDERED that the attorney-client privilege, which attaches to the communications between Movant and his former counsel, shall not be deemed automatically waived in any other Federal or State proceeding by virtue of the above-ordered disclosure in this section 2255 proceeding. The affidavit and documents supplied by Movant's former counsel, if one is filed, shall be limited to use in this proceeding, and the United States is prohibited from otherwise using the privileged information disclosed by Movant's former counsel without further order of a court of competent jurisdiction or a written waiver by Movant.")

Case Date Jurisdiction State Cite Checked
2014-10-02 Federal WV

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)
(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Movant's former counsel may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date Jurisdiction State Cite Checked
2014-10-02 Federal WV

Chapter: 28.703

Case Name: Washington v. United States of America, Case No.: 2:14-cv-13603, Criminal Case No.: 2:12-cr-00187-1, 2014 U.S. Dist. LEXIS 78576, *6 (S.D. W.Va. June 10, 2014)
(analyzing the subject matter waiver effect of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Coleman may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date Jurisdiction State Cite Checked
2014-06-10 Federal WV

Chapter: 28.703

Case Name: Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010)
Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010) ("'If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.'")

Case Date Jurisdiction State Cite Checked
2010-12-20 State VA

Chapter: 28.703

Case Name: Turner v. Williams, 812 F. Supp. 1400, 1433 (E.D. Va. 1993)
(finding that a former client waived the privilege by contending ineffective assistance of counsel), aff'd, 35 F.3d 872 (4th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)

Case Date Jurisdiction State Cite Checked
1993-01-01 Federal VA

Chapter: 28.704

Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)
October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date Jurisdiction State Cite Checked
2018-08-01 Federal

Chapter: 28.704

Case Name: Newsome v. Lawson, Civ. No. 14-842-RGA-MPT, 2017 U.S. Dist. LEXIS 203691 (D. Del. Dec. 12, 2017)
(applying the Teleglobe standard, and finding that a liquidating trustee could obtain privileged documents from a lawyer that jointly represented the bankrupt company and its parent; also finding that the Eureka case did not change that result; also finding that the "breach of duty exception" allowed the lawyer for a joint client to obtain privileged communications between either of the joint client and their lawyer; "Several courts have relied on the breach of duty exception to compel disclosure of privileged communications in a lawsuit between a joint client and the joint attorney. . . . The breach of duty exception provides that, '[i]n a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege.'. . . Delaware has adopted a breach of duty exception in substantially the same form. See Del. R. Evid. 502(d)(3) (stating that there is no privilege '[a]s to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer.'"; ". . . the court finds that the magistrate judge erred in concluding that the breach of duty exception does not apply to cases involving a joint representation.")

Case Date Jurisdiction State Cite Checked
2017-12-12 Federal DE
Comment:

key case


Chapter: 28.704

Case Name: Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744 (D. Utah Jan. 6, 2016)
(finding that a plaintiff impliedly waived privilege protection by denying her lawyer's authority to settle a case; "The content of the communications between Ms. Hunt and Mr. Sykes (that is, the sealed information) is relevant to all of the parties' arguments. The information may be used by Ms. Hunt to defend against the motion to enforce and to challenge the validity of the Attorney's Lien. Defendants need to use the content of the communications in their effort to enforce the settlement agreement. And Mr. Sykes will need it to enforce his Attorney's Lien. Ms. Hunt's case 'presents precisely the type of situation where the attorney-client privilege must be deemed waived to ensure fairness to both parties.'")

Case Date Jurisdiction State Cite Checked
2016-01-06 Federal UT

Chapter: 28.704

Case Name: Lender Processing Services, Inc., v. Arch Insurance Company, Case No. 1D14,4161, 2015 Fla. App. LEXIS 5873, 40 Fla. L. Weekly D. 953, (Ct. of App. Fla., Apr. 22, 2015)
("If an insurer who wants to defend against a claim of bad faith may waive privileges by attempting to show good faith on its part, . . . We see no reason why a corporation that wishes to defend against allegations of a settlement agreement by claiming lack of authority to bind its officers and directors and by relying on its in-house counsel's representations does not waive its attorney-client privilege as to the issue of authority to settle.").

Case Date Jurisdiction State Cite Checked
2015-04-22 Federal FL

Chapter: 28.704

Case Name: Imperial Fire & Casualty Ins. Co. v. Warman, Case No. 13-CV-813-CVE-FHM, 2014 U.S. Dist. LEXIS 99309 (N.D. Okla. July 22, 2014)
(following the Hearn case in a situation in which an insurance company hired a lawyer who arguably did not act competently, after which the insured sued the insurance company and the insurance company, settled with insured and then filed a lawsuit against the lawyer; "[T]he court finds that Imperial has broadly waived the attorney client privilege for communications with counsel about the bad faith case. The discoverable attorney client communications include all communications, correspondence, and documents exchanged between Imperial and its attorneys concerning the bad faith case from the date the bad faith suit was initiated through the date of the settlement.")

Case Date Jurisdiction State Cite Checked
2014-07-22 Federal OK

Chapter: 28.704

Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at *2-3, *5-6, *8, *12 (N.D. Cal. Jan. 8, 2014)
(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date Jurisdiction State Cite Checked
2014-01-08 Federal CA B 7/14

Chapter: 28.704

Case Name: United States v. White, Crim. No. 3:11-2303-CMC, 2013 U.S. Dist. LEXIS 68159, at *12 (D.S.C. Apr. 12, 2013)
(holding that the privilege did not protect information a bankrupt debtor provided his lawyer for inclusion in bankruptcy schedules; also holding that the debtor's finger-pointing at his lawyer triggered a waiver; citing Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975); "Moreover, the court concludes that Pearson has waived the privilege by casting blame on his attorney. Pearson alleges that the failure to acknowledge his ownership interest in the Subject Property in the bankruptcy proceeding -- an omission which could be material to Pearson's standing or other issues relevant to his ancillary claim -- was the fault of his attorney in such proceeding.")

Case Date Jurisdiction State Cite Checked
2013-04-12 Federal SC B 7/13

Chapter: 28.704

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶25
("Applying the implied waiver test, we find that Hazan's affidavit waived the attorney- client privilege. In the affidavit, Hazan claimed that Rappaport [defendants' former lawyer] had pressured her to sign the settlement agreement and that he did not explain to her of the terms of the settlement. These claims clearly put defendants' communications with Rappaport during settlement negotiations at issue and thereby waived the privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 4/14

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. Rhone-Poulenc Rorer, 32 F.3d at 863. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *4-5 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "During both the bankruptcy proceedings and the grand jury proceedings, Moazzeni denied culpability and blamed all misconduct on his bankruptcy lawyers' mistakes. . . . Also, in a letter to Judge Tice, Moazzeni placed the blame squarely on Krumbein's alleged incompetence, calling him 'a has-been who never acted as an attorney with our interests in heart and who failed to protect our rights.'")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 28.704

Case Name: Grasso v. O'Connor, 41 Va. Cir. 193 (Va. Cir. Ct. 1996)
(finding that the client had impliedly waived the privilege by placing at issue her divorce lawyer's alleged "abandonment" of her and the role of replacement counsel)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 28.704

Case Name: Grant v. Harris, 116 Va. 642, 650, 82 S.E. 718, 720 (Va. 1914)
("[I]t would seem clear that the client should be held to have waived her privilege and that the attorneys who acted for her in the transaction sought to be set aside should be permitted to give their version of the transaction, not only in the interest of justice to the parties to the litigation, but also for the protection of the attorneys themselves. To hold otherwise would subject the attorney to scurrilous and unjust attacks, and convert the rule which was intended only as a shield for the client's protection into a weapon of offense against others. The authorities generally hold that a client who goes upon the stand in an attempt to secure some advantage by reason of transactions between himself and his counsel, waives his right to object to the attorney's being called by the other side to give his account of the matter. Such waiver, it is held, is in no sense contrary to public policy, but is in the interest of truth and justice.")

Case Date Jurisdiction State Cite Checked
1914-01-01 State VA

Chapter: 28.802

Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(adopting the Hearn standard, and applying the at issue doctrine because the plaintiff had relied on the reasonableness of an earlier settlement in a bad faith case against an insurance company; "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege. . . . '[T]he plain language of Fed.R.Civ.P. 26(b)(3) suggests that opinion work product should not be subject to such an implied waiver, and that the rationale behind the doctrine (the fear that a party might 'make affirmative testimonial use' of a communication and then seek to shield it from disclosure) does not apply to mental impressions and legal theories.'"; "In Cox [Cox v. Administrator US. Steel & Carnegie, 17 F.3d 1386, 1421 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'. . . Cox considered the 'very rare and extraordinary circumstances' under which opinion work product can be discovered. The Eleventh Circuit found that the crime-fraud exception presented one of the very rare and exceptional circumstances in which opinion work product is discoverable, but declined to declare the subject matter waiver doctrine as a rare and exceptional circumstance. Id. However, several courts have held, subsequent to Cox, that a party can waive its opinion work-product privilege pursuant to the doctrine of at-issue waiver if it concerns the mental impressions and opinions of counsel in the context of bad faith litigation."; "Both Tolz [Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 U.S. Dist. LEXIS 6709, 2010 WL 384745 (S.D. Fla. Jan. 27, 2010)] and Maplewood Partners [Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (S.D.Fla. 2013)] demonstrate that there are certain situations, often involving cases against an insurer for alleged violations of the duty of good faith, or, as in the instant case, alleged violations of the duty of good faith and reasonableness on the part of the plaintiff, or collusion, where the doctrine of at-issue waiver could constitute one of the 'very rare and extraordinary circumstances' in which opinion work product may be discoverable."; "The instant case involves alleged violations of the duty of good faith and reasonableness on the part of Plaintiff. It would be unfair to prevent Defendant from discovery into information which could potentially shed light on the alleged bad faith conduct of the parties, or lack of good faith and unreasonableness, when it is Plaintiff who is inserting the issues of reasonableness and good faith of the agreement into this case.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 28.803

Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)
October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date Jurisdiction State Cite Checked
2018-08-01 Federal

Chapter: 28.803

Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)
May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal KS
Comment:

key case


Chapter: 28.803

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)
(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 28.901

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

Case Date Jurisdiction State Cite Checked
2015-01-30 State CA

Chapter: 28.902

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effect of a joint representation; "[C]onsiderations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial -- indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.")

Case Date Jurisdiction State Cite Checked
2015-01-30