The last two Privilege Points have addressed the implied waiver implications of litigants (defendant in the Crypto King’s trial and plaintiff in the case described last week) relying on legal advice to defend against or assert a claim. Litigants tempted to rely on such legal advice should always consider the implications.
In Roth v. Board of Managers of 299 West 12th St. Condominium, No. 154315/2022, 2023 N.Y. Slip Op 33581(U) (N.Y. Sup. Ct. Oct. 12, 3023), plaintiff sued his condominium’s owner over a neighbor’s excessive noise. During depositions, defendant’s agents claimed that they had “received a legal opinion from [their] lawyer” and “relied on the opinion of their lawyer” in concluding that the neighbor had not violated the condo’s by-laws. Id. at *2 (alteration in original) (internal citation omitted). Not surprisingly, the court ordered defendant to “produce all communications and memoranda sent between Defendant and its counsel, and between Defendant’s agents concerning Defendant’s counsel’s interpretation of the condominium Bylaws and/or house rules.” Id. at *5.
All of these opinions show the uncertain scope of the waiver triggered by relying on a lawyer’s advice to justify some action. The litigant must produce more than just his or her lawyer’s advice. The required disclosure almost always extends to the client’s communication of facts to the lawyer who provided the advice, and sometimes extends to related communications to the client and others before and after the client received that advice. Although none of these three cases addressed it, most courts also require the litigant to disclose communications with other lawyers from whom the client sought advice (including those who had provided different advice).