Chapter 21 Intent to Disclose Content

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 21

INTENT TO DISCLOSE content

21.1 INTRODUCTION

Although attorney-client privilege protection depends more on content than context, courts agree that the privilege essentially "evaporates" when clients form the intent to disclose otherwise privileged communications outside the attorney-client relationship.

21.2 INTENT TO DISCLOSE VERSUS WAIVER

This "intent to disclose" concept differs from the waiver doctrine.

• If clients form the intent to disclose privileged communications, the protection disappears even before the disclosure, thus differing from express waivers ¹ —and without clients' reliance on the communication, thus differing from implied waivers. ²

The intended disclosures' waiver impact depends on what clients ultimately disclose.

• If clients ultimately disclose documents that on their face no longer deserve privilege protection, the disclosure does not cause a waiver. ³ For instance, once clients and lawyers agree on a pleading's final form, filing that pleading does not cause a waiver.

• In contrast, some communications undeniably deserve privilege protection that cannot be eliminated. For instance, clients who disclose a privileged legal memorandum from a lawyer cannot

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avoid a waiver—even if clients try to disclaim privilege protection. 4
•	In the latter situation, transforming the memorandum into a non-privileged "position paper," and disclosing that document, normally would not cause a waiver.

21.3 DOCUMENTS

The attorney-client privilege does not protect documents that clients or their lawyers intend to disclose outside the attorney-client relationship. Ironically, privilege protection can disappear for documents that clients thought they had disclosed—even if clients later discover that the documents had not actually been disclosed.

Courts rely on this basic principle in requiring production of documents clients intend to disclose to various outsiders.

• Examples include others at a real estate closing; authorities dealing with child abuse; the public; Patent and Trademark Office; IRS; reinsurer; licensing authorities.

This principle applies in more subtle fashion to contemporaneous documents such as drafts.

• The privilege only evaporates for the final version that clients decide to disclose—which sometimes requires courts to analyze whether a document represents the final version.

Clients normally cannot disclaim privilege protection for facially privileged documents, and...