§ 38.12 Waiver

• Jurisdiction: United States

§ 38.12 Waiver

The privilege may be waived in several ways but only by the holder.¹²³ "The waiver may be express or implied."¹²⁴

[A] Client's or Attorney's Testimony

If the client testifies or elicits testimony from the attorney concerning the communication, the privilege is waived.¹²⁵ There is no waiver if only the underlying facts are elicited during the examination and the communication is not mentioned.¹²⁶ In short, there is no subject-matter waiver.¹²⁷

[B] Placing the Communication in Issue

The privilege may also be waived by placing the attorney's advice in issue.¹²⁸ For example, in United States v. Workman,¹²⁹ the accused claimed that he relied on his former attorney's advice in cashing certain checks. The Eighth Circuit found an implicit waiver of the privilege: "Workman cannot selectively assert the privilege to block the introduction of information harmful to his case after introducing other aspects of his conversations with Levad [attorney] for his own benefit. The attorney client privilege cannot be used as both a shield and a sword, and Workman cannot claim in his defense that he relied on Levad's advice without permitting the prosecution to explore the substance of that advice."¹³⁰ As discussed above, there is an exception in the case of an alleged breach of duty on the lawyer's part.

[C] Voluntary Disclosure

Voluntary disclosure of privileged information to a third party waives the privilege.¹³¹ For example, in In re von Bulow,¹³² the client acquiesced in and encouraged the publication of a book, Reversal of Fortune, about his former criminal trial, thus partly waiving his attorney-client privilege. The issue then becomes the extent of the waiver.

Federal Rule 502(a), adopted in 2008, contains a provision on voluntary disclosure. The rule limits the extent of any waiver. In the case of a disclosure in a federal proceeding or to a federal officer, (1) the waiver must be intentional; (2) the disclosed and undisclosed communications or information must concern the same subject matter; and (3) they ought in fairness to be considered together.¹³³ According to the Advisory Committee note, "[S]ubject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver."¹³⁴

[D] Inadvertent Waiver

Modern technology makes inadvertent waiver more common—e.g., sending a fax to an incorrect number or sending the wrong computer disk in response to a discovery request. Courts have generally followed one of three approaches to waiver based on inadvertent disclosure: (1) the lenient approach, (2) the "middle of the road" approach, and (3) the strict approach.¹³⁵ Under the lenient approach,¹³⁶ the privilege must be knowingly waived by the client because it exists for the benefit of the client.¹³⁷ In contrast, under the strict test, any disclosed document, intentional or otherwise, loses its privileged status, with the possible exception of situations where all precautions had been taken to preserve confidentiality.¹³⁸

Federal Rule 502(b), adopted in 2008, embraces the middle ground...