Can Denying that a Privileged Communication Took Place Ever Waive the Attorney-Client Privilege?

June 20, 2012

In most situations, a client’s denial that an attorney-client communication occurred does not waive the client’s privilege. Such a denial clearly does not disclose any privileged communications. And if such a denial waived the privilege, it is easy to envision a clever adversary creating mischief by asking deposition questions that would elicit denials.

However, a different rule applies if the client seeks some advantage by denying that a privileged communication occurred. In Adam Friedman Assocs. LLC v. MediaG3, Inc., No. 10 Civ. 5350 (JPO), 2012 U.S. Dist. LEXIS 62591 (S.D.N.Y. May 1, 2012), Judge Oetken dealt with a client’s effort to vacate the court’s earlier entry of summary judgment against it. The client argued that its previous lawyer had never advised it to oppose the summary judgment motion. The court found that the client had “directly put at issue the question [of] whether it received notice from its former attorney,” so it would be “unfair” for the client to withhold the substance of otherwise privileged communications in which the former lawyer might have advised the client of its obligation to oppose the summary judgment motion. Id. at *11, *12.

Waiver issues often focus on fairness, and in situations such as this even the denial of a privileged communication can waive the privilege.