Sixth Circuit Addresses a Fascinating Waiver Issue

June 27, 2007

The attorney-client privilege provides such a fragile protection that disclosure to third parties generally destroys the privilege. However, some courts have dealt with the interesting scenario of a client disclosing privileged communications to a third party with whom the client has another protected relationship subject to a separate privilege (such as that between a husband and wife.)

In Maday v. Public Libraries of Saginaw, 480 F.3d 815 (6th Cir. 2007), plaintiff Maday sued Saginaw Library for age discrimination. Maday lost a jury trial, and appealed. Among other things, she claimed that the trial court erroneously allowed the introduction of her social worker’s note indicating that she was “unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge.” Id. at 820. The Sixth Circuit indicated that Maday’s conversations with her social worker deserved protection under the psychotherapist/patient privilege. However, Maday had waived that privilege by claiming emotional distress damages, and herself introducing some of the social worker’s records. Turning to the specific disclosure of Maday’s communications with her lawyer, the court held that Maday’s disclosure to her social worker of communications with her lawyer provided “a clear example of voluntary disclosure of privileged information to a third party” ‑‑ thus waiving the attorney-client privilege. Id. at 821. Although the court did not address it, presumably the defendant never would have discovered Maday’s waiver of the attorney-client privilege had she not waived the psychotherapist-patient privilege.

A lawyer whose client might be able to rely on multiple privileges should become familiar with the interplay between them.