Although the attorney-client privilege and work product doctrine are not rocket science, they can be complicated. Surprisingly, some prestigious courts seem to misunderstand some of the basic elements.
In Hanson v. United States Agency for International Development, 372 F.3d 286, 292, 294 (4th Cir. 2004), the Fourth Circuit made a number of mistakes: (1) referring to the “common interest doctrine” as involving multiple parties consulting the same lawyer (that is a joint representation – the “common interest doctrine” involves each client having its own lawyer); and (2) using the term “implied waiver” as involving a party “voluntarily disclos[ing] confidential information on a given subject matter to a party not covered by the privilege” (that is an express waiver – an “implied waiver” occurs without the disclosure of confidential information, but rather with a reliance on the fact of the communication). The Fourth Circuit also indicated that a lawyer may not waive the privilege without the client’s consent – which may not be wrong, but is a minority position and inconsistent with earlier decisions.
The judicial misuse of such terms makes a practicing lawyer’s job even more difficult.