Attorney-Client Privilege — At Issue Waiver

A three-part test is generally used to determine whether a party has waived the attorney-client privilege by placing privileged communications ‛at issue.“ An implied waiver occurs when (1) the party asserts the privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged information at issue; and (3) allowing the privilege would deny the opposing party access to information vital to its defense. Two decisions rendered last week illustrate at-issue waiver in context.

The plaintiff bank in 1st Security Bank v. Eriksen, 2007 U.S. Dist. LEXIS 4449 (W.D. Wash. Jan. 22, 2007) had hired the defendant lawyer and law firm to draft a SERP (benefits plan) for the bank’s CEO. After the CEO resigned, he sued the bank for SERP benefits, and the bank ultimately settled. The bank then filed this legal malpractice suit against the defendants for negligence in drafting an ambiguous SERP. The defendants subpoenaed the law firm that represented the bank in the litigation with the CEO, claiming that the bank had placed that firm’s advice at issue by filing this suit (and, inter alia, taking a different position as to the ambiguity of the SERP). Stressing that ‛[m]ere relevance to defendant's case is not sufficient,“ the court found the three-part test unsatisfied and no at-issue waiver.

In contrast, consider Scifres v. Ford Motor Co., 2007 U.S. Dist. LEXIS 5212 (W.D. Okla. Jan. 24, 2007), a wrongful death action brought by a surviving husband following an accident that that claimed the life of his wife and child. But this was a wrongful death action with a twist. The plaintiff husband had filed an uncontested divorce proceeding against his deceased wife before the accident, but had also instructed his divorce lawyer to withdraw the action before the accident. The defendants sought all communications between the plaintiff and his divorce lawyer. The court found the three-part test was satisfied and held that plaintiff’s communications with his divorce lawyer ‛regarding the state of his marriage and his intentions regarding getting a divorce are at issue in this case in relation to plaintiff’s loss of consortium claim.“

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