§ 38.12 WAIVER

JurisdictionNorth Carolina

§ 38.12. WAIVER

The privilege may be waived in several ways but only by the holder.122 "The waiver may be express or implied."123

[A] Client's or Attorney's Testimony

If the client testifies or elicits testimony from the attorney concerning the communication, the privilege is waived.124 There is no waiver if only the underlying facts are elicited during the examination and the communication is not mentioned.125 In short, there is no subject-matter waiver.126

[B] Placing the Communication in Issue

The privilege may also be waived by placing the attorney's advice in issue.127 For example, in United States v. Workman,128 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."129 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.130 For example, in In re von Bulow,131 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.132 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."133

[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.134 Under the lenient approach,135 the privilege must be knowingly waived by the client because it exists for the benefit of the client.136 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.137

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

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