Chapter 24 Power to Waive the Privilege

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

Chapter 24

POWER TO WAIVE THE PRIVILEGE

24.1 INTRODUCTION

Analyzing possible attorney-client privilege waiver necessarily begins with determining whether whoever acts or fails to act possesses authority to waive the privilege.

VA A Virginia circuit court ¹ held that only the client can waive the privilege.

24.2 INDIVIDUALS AND THEIR SUCCESSORS

Individual clients can waive their own privilege, but the issue becomes more complicated with bankrupt or deceased clients. [24.201]

Some courts analyzing authority to waive bankrupt individuals' privilege protection find that bankruptcy trustees can waive such individuals' privilege. [24.202]

• Some courts find that individuals' trustees do not have such authority.

• This contrasts with the essentially per se rule that bankrupt corporations' trustees can waive such corporations' privilege (discussed below).

In most situations, deceased individual clients' executors control their privilege, and therefore can waive it. [24.203]

Courts and bars sometimes recognize minor exceptions if executors' interests vary from those of the deceased clients. [24.204]

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• For instance, an abusive husband named as executor by an abused wife later driven to suicide probably would not gain the authority to waive his late wife's privilege.

Most courts find that the attorney-client privilege offers permanent protection that survives clients' death. [24.205]

However, some courts recognize what they call the "testamentary exception."

•	Under that doctrine, lawyers who represent individuals may have to disclose privileged communications after their clients die—if such disclosure would help resolve disputes among those taking under wills or other testamentary documents.
•	The doctrine does not permit disclosure in the context of third parties such as creditors seeking estates' money.
VA	The Virginia Supreme Court 2 recognized what is commonly called the "testamentary exception."

24.3 JOINTLY REPRESENTED CLIENTS

Because jointly represented clients each have power over privileged communications among them and their joint lawyer, waiver in that context can involve subtle issues. [24.301]

Most courts hold that each jointly represented client can waive privilege protection for his or her own communications with the joint lawyer. [24.302]

In contrast, one jointly represented client usually cannot waive the privilege protecting communications among or involving other jointly represented clients. [24.303]

• Jointly represented clients normally must unanimously agree to waive privilege protection covering communications among them.

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If jointly represented clients later become adversaries, any of them usually can seek in discovery otherwise privileged communications between the former joint clients and their joint lawyer. ³ [24.304]

•	Under this principle, one joint client usually can obtain access even to communications in which he or she did not participate at the time.
VA	A Virginia circuit court 4 held that either formerly jointly represented clients may force the joint lawyer to disclose communications to either of the former joint clients.

Courts disagree about the extent of adversity that triggers this principle.

• Some courts require litigation among

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