Waiver and Advice-of-Counsel Defense
Invoking an advice-of-counsel defense typically waives the attorney-client privilege. Courts often invoke the principle of fairness and the sword/shield analogy when discussing privilege waiver. Judges view it as unfair for a party, on the one hand, to use privileged information as a sword in advocating a position or invoking the advice-of-counsel defense while, on the other hand, claiming privilege in withholding that same information from a discovery request.
As a result, the president’s tweet could expose the 7,000-plus materials seized by authorities from Cohen that the New York special master in that case previously determined to be protected. By invoking advice of counsel, the president has essentially placed his privileged communications with Cohen “at issue”; and, therefore, investigators may soon have access to any and all communications Trump had with Cohen—as well as Cohen’s work product generated as counsel to Mr. Trump.
Rulings regarding the scope of the waiver resulting from an advice-of-counsel defense, however, are not uniform. They tend to vary by both the facts and the jurisdiction considering the question. Moreover, the question of whether the waiver extends to attorney work product has been addressed by courts differently. At a minimum, though, privileged materials relating to the subject matter of the advice received are typically found to be discoverable following the invocation of the advice-of-counsel defense.
Although the legal impact of President Trump’s December 13 tweet will not be known for some time, it serves as a reminder that before invoking an advice-of-counsel defense, lawyers and clients must be aware of the risks posed by inconsistent rulings regarding the scope of waiver, which, at their broadest, could expose all privileged and work-product material to discovery. In the end, lawyers would be best served to assume that all privileged and work-product material will end up in the hands of an adversary if the advice-of-counsel defense is invoked.