Attorney-client privilege protection depends on the communication’s content – it only immunizes from discovery clients’ request for legal advice (and accompanying factual recitations) and lawyers’ legal advice in response.
In State v. Winckler, 33 N.W.3d 58 (S.D. 2026), the court addressed criminal defendant Winckler’s conviction for failing to appear for a pretrial conference. Winckler argued that the court erred in admitting his lawyer’s testimony “that he wrote a letter to Winckler telling him where to be and when.” Id. at 80. The court quoted precedent holding that the privilege doesn’t apply to “a lawyer’s communication to a client of the terms of a public court order.” Id. at 81 (citation omitted).
Other courts disagreeing with that privilege call nonetheless have ordered disclosure of such communications under the “at issue” waiver doctrine. It can recognize a waiver without the client’s intentional or unintentional disclosure of privileged communications, explicit reliance on legal advice, or even reference to legal advice. A good example is a client’s excuse for missing a court hearing that her lawyer never told her about. Having put her knowledge or ignorance of the hearing date “at issue” to gain some advantage, a client normally cannot resist discovery even of privileged communications from her lawyer about the hearing date and time.