Court Acknowledges a Basic Form of Implied Waiver

March 24, 2004

A litigant impliedly waives the attorney-client privilege by relying on the fact of a communication to gain some advantage. Such an approach is not an express waiver, because it does not actually reveal the substance of the privileged communications.

In Graziose v. United States, No. 03 Civ. 8109 (RWS), 2004 U.S. Dist. LEXIS 742, at *1 (S.D.N.Y. Jan. 12, 2004), criminal defendant Graziose sought to vacate his guilty plea because a “previous head injury” had clouded his judgment. He claimed that his trial counsel had failed to tell the court about the head injury, and thus had provided him ineffective assistance. The court noted that a criminal defendant’s claim of “ineffective assistance of counsel” that relies on privileged communications impliedly waives the attorney-client privilege. Id. at *2.

Although this type of implied waiver is obvious, on the whole implied waivers are more difficult to address because they do not involve the actual sharing of any privileged communications.