Chapter 28 Implied Waiver

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

Chapter 28

IMPLIED WAIVER

28.1 INTRODUCTION

An implied attorney-client privilege waiver can occur without the disclosure of any privileged communications. Instead, an implied waiver can occur if the privilege's owner relies on the fact of a privileged communication, or otherwise raises issues justifying examination of privileged communications.

28.2 IMPLIED VERSUS EXPRESS WAIVER

An implied waiver contrasts with an express waiver, which involves privilege owners' intentional or inadvertent disclosure of privileged communications.

28.3 OTHER UNINTENTIONAL DISCLOSURES

An implied waiver differs from the privilege's unavailability because third parties participate in otherwise privileged communications. ¹

Similarly, an implied waiver differs from the privilege's "evaporation" once clients form the intent to disclose privileged communications to third parties outside the attorney-client relationship. ²

28.4 DIFFERENCE BETWEEN IMPLIED WAIVER AND A LITIGANT'S FAILURE OF PROOF IN SUPPORTING A PRIVILEGE CLAIM

Some courts erroneously use the term "implied waiver" to describe litigants' failure to support their privilege claim in privilege logs or elsewhere.

[Page 188]

• Although the terminology may not matter, such failures of proof differ from classic implied waivers—in which the privilege's owner relies on the fact of a privileged communication.

28.5 RULE 502

On its face, Rule 502 does not affect traditional implied waiver principles.

28.6 THE "AT ISSUE" DOCTRINE

A classic implied waiver can occur when privilege owners rely on or otherwise refer to privileged communications.

• In contrast, the "at issue" doctrine can apply even if litigants do not explicitly rely on or refer to privileged communications. ³

28.7 CLIENTS' ATTACKS ON LAWYERS AND LEGAL ADVICE

Clients can impliedly waive their attorney-client privilege if they attack their lawyers or their lawyers' legal advice. [28.701]

Clients asserting malpractice claims against their lawyers normally waive their privilege, because lawyers can freely disclose privileged communications when defending themselves. [28.702]

• A parallel ethics rule also relieves such lawyers from their ethics duty of confidentiality.

Criminal defendants claiming ineffective assistance of counsel usually waive their privilege protection. [28.703]

Clients' assertion of other claims against their lawyers can also waive privilege protection. [28.704]

[Page 189]

28.8 THIRD PARTIES' ATTACKS ON LAWYERS

Even third parties' attacks on clients' lawyers can impliedly waive privilege protection. [28.801]

• This principle seems counterintuitive, given lawyers' confidentiality duties.

The ABA Model Rules and every state's parallel ethics rules contain a self-defense exception, which relieves lawyers of their duty of confidentiality if third parties attack them. ⁴ [28.802]

Most courts hold that lawyers can similarly defend themselves from third parties' attacks by disclosing otherwise privileged communications. [28.803]

• Courts disagree on when lawyers may initiate such self-defense disclosures, but most courts do not force lawyers to wait until third parties file lawsuits against them.

28.9 LAWYERS' ATTACKS ON CLIENTS

Lawyers' attacks on their clients can impliedly waive privilege protection. [28.901]

Lawyers suing their clients for unpaid legal fees normally can disclose privileged communications to the extent necessary. [28.902]

Although courts traditionally did not permit in-house lawyers to file wrongful termination claims against their employers if such suits would involve privileged communications' disclosure, most courts now permit such claims. [28.903]

28.10 CLIENT CLAIMS FOR ATTORNEY FEES

Clients' efforts to recover their attorney's fees from third parties can create complicated implied waiver issues. [28.1001]

• Clients might assert such claims against third parties under fee-shifting contract provision or statutes.

Most courts hold that clients need not publicly disclose privileged communications while seeking attorney's fees from such third parties. [28.1002]

• The issue usually involves clients' lawyers' bills, but can also extend to privileged communications.

In contrast, some courts require...