Courts Debate the Scope of a Classic Implied Waiver

November 23, 2011

Unlike an express waiver, an implied waiver can occur without the client actually disclosing any privileged communications or work product. Instead, an implied waiver can occur if the client relies on the fact of the protected communications, or otherwise puts such communications “at issue” by asserting some claim or defense. In a classic situation, a client impliedly waives the privilege by suing a former lawyer for malpractice.

One key issue involves the scope of such an implied waiver. In Lyon Financial Services, Inc. v. Vogler Law Firm, P.C ., Case No. 10-cv-565-JPG-DGW, 2011 U.S. Dist. LEXIS 99353 (S.D. Ill. Sept. 2, 2011), the court found that such an implied waiver required the client to disclose communications with replacement counsel. The court pointed to “fundamental fairness,” and noted that without those communications the defendant law firm “would be effectively precluded from challenging the causation and actual damages prongs for legal malpractice.” Id. at *10-11. Less than two weeks later, another court took exactly the opposite position. In Sann v. Mastrian, No. 1:08-cv-01182-JMS-MJD, 2011 U.S. Dist. LEXIS 103809, at *4-5 (S.D. Ind. Sept. 13, 2011), the court handling a malpractice case held that “the at‑issue waiver includes communications with all legal counsel up to the date of the alleged malpractice, but not those subsequent.” The court agreed with the client that allowing the defendant law firm access to such communications “simply by placing damages at issue ‘would render the privilege illusory in all legal malpractice actions.'” Id. at *6 (internal citation omitted).

Clients or lawyers analyzing implied waivers must also analyze the scope of such waivers.