Does a Winning Litigant Waive the Privilege and Work Product Protection by Seeking Attorney’s Fees from the Loser?

June 13, 2007

A litigant can trigger an implied waiver of the attorney-client privilege and the work product doctrine by relying upon the fact of protected communications, even without disclosing those communications. Courts have wrestled with the implied waiver impact of a successful litigant seeking attorneys’ fees from the loser.

In Essex Builders Group, Inc. v. Amerisure Insurance Co., No. 6:04-cv-1838-Orl-22JGG, 2007 U.S. Dist. LEXIS 14458 (M.D. Fla. Mar. 1, 2007), winning plaintiff Essex sought over $800,000 in attorneys’ fees from defendant Amerisure. In support of its fee request, Essex filed its legal bills, from which it had redacted phrases protected by the attorney-client privilege and the work product doctrine. Amerisure claimed that Essex had impliedly waived the privilege by seeking its fees. The court agreed, noting that “[i]t has long been recognized that ‘the attorney-client privilege is waived when a litigant places information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party.'” Id. at *2-3 (citation omitted). The court also denied Essex’s request that the court review the bills in camera — and instead ordered Essex to produce its unredacted bills.

Litigants who might seek recovery of attorneys’ fees from an adversary should remember that they may be called upon to disclose to the adversary all of their lawyer’s bills.