Under the “at issue” doctrine, a litigant can waive the attorney-client privilege by affirmatively asserting a position — if the full exploration of the issue should in fairness include otherwise privileged communications. This type of waiver represents the most frightening form of implied waiver, because it does not rest on (1) disclosure of privileged communications or (2) reliance on or reference to privileged communications (as with the more traditional type of implied waiver such as pleading an “advice of counsel” defense).
In Chin v. Rogoff & Co., No. 05 Civ. 8360 (NRB), 2008 U.S. Dist. LEXIS 38735 (S.D.N.Y. May 6, 2008), plaintiffs sued their accountant for malpractice — alleging that the accountant had provided bad advice about whether to sign a release in connection with the plaintiffs’ sale of a company. The accountant sought documents from the law firm of Akin Gump, which had also provided advice to plaintiffs when they sold their company. The accountant argued that the plaintiff had placed Akin Gump’s legal advice “at issue” by arguing that they relied on the accountant’s advice in signing the release. The court agreed with the accountant, noting that if “Akin Gump was advising the plaintiffs not to sign the release even after and despite [the accountant’s] determination that there would be no adverse consequence to the plaintiffs, then the existence of any causal link between [the accountant’s] advice and the plaintiffs’ damages can only be assessed by invading the privilege and examining the nature of the advice that Akin Gump gave to plaintiffs.” Id. at *17.
Lawyers must look two or three steps ahead to determine if their client’s assertion of some position might place the lawyer’s legal advice “at issue” and thus waive the privilege.