24.8 Lawyers

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

24.8 LAWYERS

24.801 Introduction. The privilege belongs to the client and not to the client's lawyer. ¹³⁷ As the client's agent, the lawyer must follow the client's direction when dealing with the privilege, asserting the privilege when directed to do so and even when not explicitly directed to do so. Because lawyers interact with third parties, they frequently have the opportunity to waive the privilege by disclosing privileged communications to those third parties, either intentionally or inadvertently. For all of these reasons, courts have had to wrestle with lawyers' power to waive the client's privilege.

24.802 Lawyers Acting with Clients' Express Authority. Courts generally find that lawyers may waive the client's privilege if the client explicitly permits them to do so. Examples include:

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• Client authorizing or permitting the lawyer's disclosure; ¹³⁸

• Lawyer revealing privileged communications while testifying as a Rule 30(b)(6) witness; ¹³⁹

• Client designating a lawyer as an expert. ¹⁴⁰

As long as the lawyer is not acting in his or her own personal interest but instead seeking to pursue the client's interest, it makes sense to find that a lawyer can waive the client's privilege. Otherwise a client could seek an advantage through the disclosure while retaining the power to deny a waiver if the tactic backfires.

24.803 Lawyers Acting with Clients' Implied Authority. Lawyers' disclosure of privileged communications raises far more complex issues if the client has not expressly authorized the lawyer to disclose the communications.

The Restatement generally finds a lawyer acting with implied authority to handle the client's privileged communications can waive the privilege. "The privilege is waived if the client's lawyer or another authorized agent of the client discloses the communication acting under actual or apparent authority. A lawyer generally has implied authority to disclose confidential client communications in the course of representing a client." ¹⁴¹

This Restatement position is somewhat surprising, given the Restatement's generally protective view of the privilege. However, it represents the majority view. ¹⁴² Interestingly, the vast majority of cases taking this position do not even discuss it. Nearly every one of the hundreds of decisions dealing with an inadvertent express waiver of the privilege during a document production analyze the effect of the lawyer's mistake, not the client's mistake. Chapter 27 of this book discusses those issues. Courts wrestling with such accidental disclosure caused by a lawyer's

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inattention usually do not even address the lawyer's power to waive the privilege. They just assume that a lawyer's accidental disclosure can waive the client's privilege.

A handful of courts take a position that seems almost too good to be true. For instance, in 2007 the Federal Circuit held that "[t]he attorney-client privilege belongs to the client, who alone may waive it." ¹⁴³ The court clearly did not mean what it said, because lawyers acting with express authority clearly can waive the privilege. However, other courts have said essentially the same thing. ¹⁴⁴ Other courts indicate that a lawyer may not waive the client's privilege without explicit consent. ¹⁴⁵

The most forgiving approach to an inadvertent express waiver formerly adopted this position, holding that a lawyer's inadvertent production of a document during litigation did not waive the privilege because only the client can waive the...