Lawyers sometime impliedly waive their client’s attorney-client privilege protection by advancing certain affirmative positions or defenses in litigation. These waivers are especially frightening because lawyers may not know that their litigation positions will be found to have waived the privilege.

In the recent case of Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269 (N.D. Ill. 1997), the court found that a party had impliedly waived the attorney-client privilege by arguing that the statute of limitations should not bar its franchise act claim because the client was unaware of the claim until discussions with its lawyer. The court found that this defense injected an issue into the case which could be resolved only by an examination of confidential communications.

Before asserting positions or defenses in litigation, lawyers should carefully analyze the possible implied waiver ramifications.

Lawyers sometime impliedly waive their client’s attorney-client privilege protection by advancing certain affirmative positions or defenses in litigation. These waivers are especially frightening because lawyers may not know that their litigation positions will be found to have waived the privilege.

In the recent case of Pyramid Controls, Inc. v. Siemens Indus. Automations, Inc., 176 F.R.D. 269 (N.D. Ill. 1997), the court found that a party had impliedly waived the attorney-client privilege by arguing that the statute of limitation should not bar its franchise act claim because the client was unaware of the claim until discussions with its lawyer. The court found that this defense injected an issue into the case which could be resolved only by an examination of confidential communications.

Before asserting positions or defenses in litigation, lawyers should carefully analyze the possible implied waiver ramifications.