Attorney-Client Privilege — “At Issue” Waiver — Mere Mention of Advice and Relevance Insufficient

From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008):

Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party.

Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney’s advice might affect the client’s state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.

Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); see also Ross v. City of Memphis, 423 F.3d 596, 605 (6th Cir. 2005) (privilege may be implicitly waived when defendant asserts claim that requires examination of protected claims in the interest of fairness). An otherwise privileged communication is placed in issue when a party “seeks to take advantage of the privileged communications themselves”***.

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