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March 01, 2015

Scruples: Obtaining Evidence from Former Counsel

Does an advice-of-counsel defense waive attorney-client privilege?

Michael Downey

Paradox cornered Ethox at lunch. “I have another issue,” Paradox said.

“What is it this time?” Ethox quipped good-naturedly.

“I need to get Nemesis’s client file,” answered Paradox. “Remember the lawsuit in which our client Jay was sued by Nemesis’s client Kaye?”

“Oh, yes, I remember,” Ethox smiled.

“Well, Jay had us file an abuse of process claim against Kaye related to that lawsuit,” Paradox continued. “Kaye’s answer asserts advice of counsel as an affirmative defense. Asserting an advice-of-counsel defense waives the attorney-client privilege, right?”

“Yes, generally speaking,” Ethox answered, “asserting an advice-of-counsel defense does act as a subject matter waiver for privileged communications about the subject matter where the party, here Kaye, is claiming reliance on advice of counsel. The waiver is usually pretty broad: It may include anything that reflects, explains, or impeaches legal counsel’s advice.

“Asserting an advice-of-counsel defense also usually waives the work-product protection,” Ethox explained further, “at least for work product shared with the client. If the client never saw work product, it would ordinarily not be subject to discovery.”

“Good,” Paradox sounded confident. “So, after Kaye asserted an advice-of-counsel defense, we requested that Nemesis produce Kaye’s file from the earlier litigation. But Nemesis refuses, claiming that a duty of confidentiality still owed to Kaye as a former client prevents disclosure.”

“Unfortunately,” Ethox responded, “Nemesis is probably right. Claiming advice of counsel may waive the attorney-client privilege, but it does not remove a lawyer’s duty of confidentiality. Under ABA Model Rule of Professional Conduct 1.6(a) for current clients and Rule 1.9(c) for former clients, a lawyer must keep information relating to the representation of a client confidential, unless some exception applies.”

“And waiving the privilege is the exception, right?” Paradox pressed.

“Actually, you are confusing privilege and confidentiality,” Ethox answered. “The duty of confidentiality prevents Nemesis from just giving us the information we want. Privilege is what would normally prevent a court from forcing Nemesis to turn over files of a former client in discovery. Although the privilege has been waived, we still need to overcome Nemesis’s duty of confidentiality.”

“How do we do that?” Paradox huffed.

“Well, we need an exception to Nemesis’s duty of confidentiality,” Ethox answered. “The exceptions are listed in Rule 1.6 and, for former clients, Rule 1.9(c), which largely incorporates Rule 1.6. Here, the key will likely be Rule 1.6(b)(6), which permits a lawyer to disclose confidential information”—Ethox paused to recall the correct wording—“‘to comply with other law or a court order.’”

“We need a court order for Nemesis to turn over Kaye’s file?” Paradox groaned.

“Probably,” Ethox answered. “Ordinarily, the easiest way to get access is to serve written discovery on the lawyer, Nemesis. Kaye may then authorize Nemesis to produce the file, as provided in Rule 1.6(a). You may be able to work something out with Kaye’s new lawyer.”

“I doubt that,” Paradox interjected.

“If you can’t work anything out,” Ethox stated, “then a court hearing your waiver argument should order Nemesis to produce records where the privilege is waived. This court order should satisfy Rule 1.6(a)(6), allowing Nemesis to give us the information.”

“What if Kaye continues to fight production, perhaps by filing an appeal?” Paradox asked.

“You likely will need Kaye’s consent or a final court order before Nemesis can act,” Ethox said. “But often a client will either withdraw the advice of counsel defense or agree to the scope of production once related discovery is served. And if things cannot be worked out, usually parties will accede to a trial court’s directive on how discovery of the attorney’s file should be handled.”

“I certainly hope so,” Paradox sighed. “Now, what is for lunch?”

Michael Downey

The author is a legal ethics lawyer at Downey Law Group LLC, St. Louis. He also teaches legal ethics and law firm practice, and testifies as an expert witness on such matters.