Waiver of Attorney-Client Privilege Via Issue Injection: A Call for Uniformity

Practitioners are faced with uncertainties that should be settled as to when issue injection defeats attorney-client privilege DURING past two decades, doctrine of implied waiver of attorney-client privilege has been reshaped and re-evaluated by courts. Unfortunately, this surge of activity has failed to yield a uniform approach. As a result, law of implied waiver is currently a confusing web of competing tests and ad hoc applications that force practitioners to speculate on exact scope and application of doctrine. With complex, document-intensive litigation on rise, it is vital for courts to provide clear guidance as to when confidential communications will be subject to exposure. That guidance does not exist. Courts that adopt a restrictive interpretation find implied waiver of attorney-client privilege only if a party directly injects reliance on advice of counsel as a claim or defense.(1) On other hand, courts that favor a liberal interpretation have extended implied waiver doctrine to any claim or defense that merely places a party's own state of mind into issue.(2) The implied waiver of attorney-client privilege usually arises in context of claims or defenses such as equitable tolling of statute of limitations, good faith, justifiable reliance, estoppel, fraudulent misrepresentation, or contact interpretation. Absent certainty on scope of implied waiver, practitioners run risk of impairing their client's position. ATTORNEY-CLIENT PRIVILEGE The attorney-client privilege protects certain communications between attorneys and clients. However, privilege observed by federal courts differs from that used by many state courts, and privilege also varies from state to state. Traditionally, federal courts rely on either Wigmore's or Wyzanski's interpretation of attorney-client privilege. The Wigmore construction provides: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) communications relating to that purpose, (4) made in confidence (5) by client, (6) are at his instance permanently protected, (7) from disclosure by himself or by legal advisor, (8) except protection may be waived.(3) The more elaborate Wyzanski interpretation states: The privilege applies only if (1) asserted holder of privilege is or sought to become a client; (2) person to whom communication was made (a) is a member of bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) communication relates to a fact of which attorney was informed (a) by his client (b) without presence of strangers (c) for purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for purpose of committing a crime or tort; and (4) privilege has been (a) claimed and (b) not waived by client.(4) Unlike federal interpretation, Tennessee rule stated in Section 23-3-106 of Tennessee Code protects only communications made by a client to an attorney: (a) No attorney, solicitor or counselor shall be permitted, in giving testimony against a client, or person who has consulted attorney, solicitor or counselor professionally, to disclose any communication made to attorney, solicitor or counselor as such by such person, during pendency of suit, before or afterwards, to his injury. Depending on their perspectives, courts have characterized attorney-client privilege on a spectrum from a roadblock to truth to an essential tool in legal representation of a client.(5) Regardless of characterization, attorney-client privilege does prevent discovery of potentially relevant communications, but society has subordinated search for truth to a preferred value: the full and free right to assistance of counsel. …