Can Clients Waive the Privilege Without Intending To?

May 24, 2006

Pointing to the attorney-client privilege’s fragility, every court recognizes that clients can waive the privilege protection. Elsewhere in the law, the concept of “waiver” usually involves a deliberate and knowing relinquishment of some right.

In contrast, most courts do not require such a deliberate and knowing act before finding that a client has waived the attorney-client privilege. A Texas state court and a Texas federal court emphasized this point in separate decisions decided exactly one month apart. Jones v. State, 181 S.W.3d 875, 878 (Tex. App. 2006) (a criminal defendant argued that the state had not proven he “was cognizant of the full ramifications of the attorney-client privilege or that he knowingly and voluntarily relinquished the protections afforded by the privilege,” but finding a waiver nevertheless (internal quotations omitted)); Shelton v. Dretke, No. 3-05-CV-763-N, 2006 U.S. Dist. LEXIS 4960 (N.D. Tex. Feb. 9, 2006) (finding that an inmate waived the arguably applicable attorney-client privilege covering a document by allowing law enforcement officers to copy the document; not addressing the state of the inmate’s mind, thus implicitly holding his state of mind irrelevant).

Litigants should not assume that familiar legal doctrines (such as waiver) apply in the normal fashion to the remarkably fragile attorney-client privilege.