The most frightening form of waiver is “implied waiver,” which results from a party’s reliance on the fact of a privileged communication rather than disclosure of the communication itself. Although some examples are obvious (such as assertion of an “advice of counsel” defense), it may be difficult to tell when even a reference to privileged communications might create such an implied waiver.
In United States v. McDonald, No. 01-CR-1168 (JS)(WDW), 2002 U.S. Dist. LEXIS 9866, at *8 (E.D.N.Y. May 9, 2002), the court found that a person had not waived the attorney-client privilege by testifying before a local legislature that a company policy was “established on counsel’s advice.” The court found that such a reference by itself was not substantive enough to cause a waiver.
Lawyers (and clients) who may find it necessary to refer to the lawyer’s advice in general terms should become familiar with the point at which such a reference will cause an “implied waiver” of the attorney-client privilege.