Lawyers and clients usually recognize that sharing a privileged communication outside the narrow attorney-client relationship can waive the privilege. However, it is more difficult to understand an implied waiver—which results not from disclosing the content of a privileged communication, but rather from relying on or otherwise implicating the fact of the communication. The best-known example is the waiver that comes from a litigant’s reliance on “advice of counsel” as a defense—which impliedly waives the attorney-client communication regarding that advice.
The court in Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002), recognized another less obvious (but in many ways more frightening) implied waiver, holding that a party who filed an action for indemnification seeking recovery of legal fees incurred in an earlier case had waived the attorney-client privilege otherwise protecting communications during that earlier case.
Lawyers who do not understand implied waivers could lead their clients into awkward situations in which the clients are found to have waived the attorney-client privilege.