Court Analyzes the “At Issue” Doctrine

October 21, 2009

A client can impliedly waive the attorney-client privilege without actually disclosing any privileged communication — by relying on the fact of the communication. The “at issue” doctrine represents the most extreme form of implied waiver. A client can trigger an “at issue” waiver by affirmatively raising some issue such as her mental state, which in fairness should require disclosure of pertinent privileged communications.

In Bodega Investments, LLC v. United States, No. 08 Civ. 4065 (RMB) (MDH), 2009 U.S. Dist. LEXIS 78217 (S.D.N.Y. Aug. 24, 2009), Magistrate Judge Michael Dolinger dealt with a company executive’s contention that he relied on an IRS agent’s representation about a tax issue. Although the executive did not disclose, rely on, or even mention his lawyer’s advice about that tax issue, the court found that the executive’s argument “puts in play his state of mind” — and that “to determine whether [the executive] relied on the representation of the agent, a trier of fact must learn what his attorney said to him about whether to rely.” Id. at *9, *10. The court therefore ordered the executive to disclose the advice he received from his lawyer about the tax issue.

The “at issue” waiver represents the most frightening type of waiver, because clients and their lawyers might not realize that they have triggered such a waiver until it is too late to avoid it.