To waive attorney client privilege, a court has to first determine whether the privilege can be waived and who has the authority to waive it. Waiving attorney-client privilege can have a significant impact on the outcome of a legal case because it results in the disclosure of attorney-client communications. In the corporate context, a court may use the per-se waiver approach or case-by-case waiver approach to analyze attorney-client privilege waiver.

What Is Attorney-Client Privilege?

Attorney-client privilege refers to the legal privilege that maintains the secrecy of communications between a lawyer and his or her client. Attorney-client privilege is asserted when there is a legal demand for such communications, such as a demand for the attorney to testify under oath or a discovery request. In general, it covers oral and written legal advice and discussions between an attorney and his or her client.

How Attorney-Client Privilege Works in the Corporate World

In the groundbreaking Upjohn Co. v. United States case, the Supreme Court decided that the attorney-client privilege not only applies to individuals but corporations as well. Since the corporation itself, not the management, is the client, it is the holder of the attorney-client privilege. Although corporations can hold such a privilege, a corporation is considered a legal fiction and cannot speak for itself.

In another case, Commodity Futures Trading Commission v. Weintraub, the Supreme Court determined who has the right to waive corporate attorney-client privilege. In the end, the Court decided the management of the corporation has the authority to waive the privilege and the directors and officers are usually the ones who exercise the authority.

Although most courts accept that the management of a corporation has the power to waive attorney-client privilege, the situation becomes more complicated when the corporation itself asserts the privilege while a director or officer makes a disclosure that possibly results in a waiver. Courts are divided as to whether it is possible to waive attorney-client privilege asserted by a corporation when one of its officers discloses otherwise privileged communications. When evaluating corporate waiver, courts use two predominate approaches, which include:

  • Per-se waiver approach – In this approach, a court decides that the attorney-client privilege of a corporation can be waived if otherwise privileged communications are disclosed by a corporate officer.
  • Case-by-case approach – This approach, on the other hand, rejects the per-se approach to attorney-client privilege waiver. Instead, it requires a court to examine the facts of a case before making the final decision.

Can Attorney-Client Privilege Be Destroyed?

Attorney-client privilege is an important factor in any lawsuit. However, in some situations, it can be destroyed, either by accident or design. There are five circumstances you need to take into consideration, including:

  • Non-legal advice – Generally, attorney-client privilege does not apply to communication that discusses issues unrelated to the law. To determine if a communication is privileged, a court usually focuses on its primary purpose.
  • Informed waiver – An agreement to waive the attorney-client privilege is another way to destroy it. Usually, a waiver must be expressed in writing, and it cannot be undone. Sometimes, a government entity will agree to waive attorney-client privilege to show that it has nothing to hide.
  • Waiver by communicating with a third party – Having a third party present when the communication is taking place is a common way to waive attorney-client privilege. Waiver can also occur if privileged information is disclosed to a third party at a later time. There are a number of exceptions, including disclosure of information to language interpreters and a third party who happens to be the client of the attorney in the same matter.
  • Failure to object – Failure to object usually occurs at the pretrial discovery stage, when both parties request information and documents. In the event that privileged information is shared and a party fails to object promptly, the privilege can be lost forever.
  • Crime-fraud exception – When a client and an attorney discuss how to commit or perpetuate a criminal or fraudulent act, attorney-client privilege usually does not apply.

Attorney-client privilege is not easy to destroy. However, it is not uncommon for the privilege to be challenged during the course of a legal case. If you are involved in a lawsuit, it is important to ask your attorney exactly what is covered, so you will not accidentally destroy the attorney-client privilege.

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