Attorney-client Privilege Waiver

Introduction

The attorney-client privilege is a rule of evidence that everything a client says to a lawyer is confidential. "The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years. . . . While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as 'sacred,' it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions."1 However, the privilege may be waived expressly or impliedly.

Attorney-client Privilege

"[T]he client . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer."2

Waiver of the Attorney-client Privilege

The attorney-client privilege may be waived expressly or impliedly. "[T]he attorney-client privilege [does] not apply without qualification where . . . the client's dominant purpose in retaining the attorney was something other than the request for a legal opinion or advice."3 "[T]he person or entity seeking to discover privileged information can show waiver by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action."4 "However, an insurer does not waive the attorney-client privilege where it is not defending itself on the basis of the advice it received."5

1.	Statutory Waiver

"[T]he right of any person to claim lawyer-client privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege."6 "The privilege may be waived impliedly or by disclosure of the subject communication. The privilege is waived with respect to a protected communication if any holder of the privilege voluntarily discloses a significant part of the communication or has consented to such disclosure made by anyone. What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege."7 "Relatively few reported cases interpret" the applicable provision of the evidence code.8

"Relevant case law makes it clear that mere disclosure of the fact that a communication between client and attorney had occurred does not amount to disclosure of the specific content of that communication, and as such does not necessarily constitute a waiver of the privilege.

[P]laintiff's answers, while revealing the existence of her attorney-client relationship, at most affirmed that she had discussed certain warnings with her attorneys, and in no way revealed a significant part of the substance of those discussions."9

"The attorney-client privilege seeks to protect the conversations and communications between the attorney and client, not merely the conclusions developed by those conversations or the fact that such conversations occurred. Accordingly, we conclude that [a client's] disclosure of the fact of its attorneys' review of [a matter in controversy] and the conclusions arrived at by its attorneys to [others] was not an express waiver of the attorney-client privilege."10

"An important consideration in assessing the issue of waiver is fairness. Thus, a party may not insist on the protection of the attorney-client privilege for damaging communications while disclosing other selected communications because they are self-serving. Voluntary disclosure of part of a privileged communication is a waiver as to the remainder of the privileged communication about the same subject."11

2.	Implied Waiver

The California Supreme Court "recognized this theory of an implied waiver . . . and established that the person or entity seeking to discover privileged information can show waiver by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action."12 "The privilege may also be impliedly waived where a party to a lawsuit places into issue a matter that is normally privileged. It is said that in that case the gravamen of the lawsuit is so inconsistent with the continued assertion of the privilege as to compel the conclusion that the privilege has in fact been waived. The scope of either a statutory or implied waiver is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver."13

A.	Waiver When Counsel's State of Mind Is Placed In Issue

"Generally, implied waivers are limited to situations where the client has placed into issue the decisions, conclusions, and mental state of the attorney who will be called as a witness to prove such matters. Generally, too, the deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice. However, an insurer does not waive the attorney-client privilege where it is not defending itself on the basis of the advice it received."14 "The deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice."15 Waiver occurs when "the [party] specifically put in issue his counsel's state of mind, [but not when] it was only the [party]'s knowledge which was placed in issue."16 Implied waiver is "limited in its application to the one situation in which a client has placed in issue the decisions, conclusions, and mental state of the attorney.17 Waiver is clear where the attorney "will be called as a witness to prove such matters."18 "[A] defendant impliedly waived its attorney-client privilege when it indicated its intent to call its attorneys as witnesses."19

However, no reported California opinion clarifies whether the attorney must testify in person or by correspondence. Thus, waiver may occur when the insurer seeks to introduce into evidence letters from its counsel. Such letters may effectively constitute direct examination of the lawyer without the opportunity to cross-examine. The insurer may be placed to a choice whether to forego admitting lawyer letters into evidence or waive the attorney-client privilege.

B.	No Waiver When Only the Party's State of Mind Is Placed In Issue

"[T]he fact that [the insurer]'s state of mind was at issue in the insured's bad faith action did not place in issue its attorneys' state of mind or their advice. [T]here is no 'waiver of the attorney-client privilege where the substance of the protected communication is not itself tendered in issue, but instead simply represents one of several forms of indirect evidence in the matter.'"20 "Privileged communications do not become discoverable simply because they are related to issues raised in the litigation."21

In one reported opinion, the insurer received advice from its lawyers, but did not claim that its decision was based upon the lawyer's advice. The insurer "is not in fact relying on an 'advice of counsel' defense. [The insurer] claims it acted as it did not because it was advised to do so, but because the advice was, in its view, correct; and it is prepared to defend itself on the basis of that asserted correctness rather than the mere fact of the advice. Such a defense does not waive the attorney-client privilege."22