In a welcome congruence of common sense and legal doctrine, litigants explicitly relying on legal advice to defend their actions trigger a subject matter waiver of their attorney-client privilege. But what if they boast about having consulted a lawyer about the matter at issue without explicitly disclosing that lawyer’s advice as a defense?
In Van Steenwyk v. Van Steenwyk, defendants “stated unequivocally that they are withdrawing their advice-of-counsel defense, and only pursuing an involvement-of-counsel defense” – which “does not rely on the content of counsel’s advice and instead is based on the fact that counsel was merely consulted.” No. 2:24-cv-07401-FLA-AJR, 2026 U.S. Dist. LEXIS 75778, at *7 (C.D. Cal. Apr. 2, 2026). The magistrate judge denied discovery into defendants’ communications with their lawyer but warned that the trial judge should “wait and see how the involvement-of-counsel defense played out at trial.” Id. The trial judge could then use a “variety of means” to avoid any prejudice if defendants’ trial lawyers “suggested that counsel actually approved their clients’ conduct.” Id. at *11.
Presumably lawyers could not ethically present such a defense if the clients’ lawyer had not approved the clients’ conduct. But one cannot help but sympathize with a trial judge having to assess this doctrine’s application. What if a trial lawyer repeatedly establishes that her client consulted with a lawyer before taking the action at issue, and then turns to the jury for an exaggerated wink?