Waiver Implications of Lawyers’ Self-Defense Privilege Disclosures

October 10, 2018

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients’ and even third parties’ attacks. But do such disclosures waive the clients’ privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant’s allegation that his former lawyer “coerced” him into pleading guilty waived the client’s privilege protection for “all communications” that the former lawyer “reasonably believes necessary to disapprove the allegations.” No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants’ lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer’s disclosures to his personal lawyer and to them waived defendants’ privilege, thus freeing them to use those communications. The court rejected plaintiff’s argument and ordered it to return (and not use) the privileged documents — concluding: (1) that the accused lawyer “was permitted to disclose privileged information to his attorney . . . in defending against such allegations” ( id. at *11); (2) that the accused lawyer’s “disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself.” Id. at *8.

Lawyers’ ability to defend themselves from clients’ or third parties’ accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.