Unintended Waiver: the “At-Issue” Exception to the AC Privilege

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The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client.  Attorneys know, however, that the privilege is not absolute.  One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges.  This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often misunderstood exception to the rule.

Pursuant to the at-issue waiver doctrine, fairness requires that “where a party affirmatively places the subject matter of its own privileged communication at issue in litigation,” waiver of the privilege is required to determine the validity of the party’s claim or defense.  Under this reasoning, insisting on privilege would deprive the opposing party of vital information.  This exception aims to prevent a party from using attorney-client privilege as both an offensive and defensive weapon.

The “at issue” exception arises when a party “injects” privileged communications into the litigation, i.e. by asserting a claim or defense that she intends to prove by means of privileged materials, or when a party raises an issue into a case and the truthful resolution of the issue requires analysis of privileged communications.  Likewise, the activities of counsel are placed “at issue” when the resolution of an issue raised by a party in subsequent litigation depends on an evaluation of the legal theories, opinions, and conclusions of counsel in prior litigation.

In assessing whether this waiver applies, some courts end their inquiry with a determination of whether the discovery sought is merely “relevant”; by contrast, many jurisdictions require the court to engage in a more rigorous, fact-sensitive analysis.  While it is always prudent to consult the rules of your local jurisdiction, a good rule of thumb seems to be that privilege applies if you plead or refer generally to consulting with counsel, but does not apply if you plead or refer to the advice of counsel to advance your claim or defense.  Be sure to know and understand the rules in your jurisdiction to avoid an unintended waiver of the all-important attorney-client privilege.