Legal Definitions - at-issue waiver

An at-issue waiver occurs when a person involved in a lawsuit (a "litigant") loses the protection of the attorney-client privilege because they have made a claim or defense that relies directly on, or puts into question, the very confidential communications they had with their lawyer. Essentially, if a litigant uses their attorney's advice or their communications with their attorney as a central part of their legal argument, they cannot then prevent the opposing side from examining those communications. The law views this as unfair, as it would allow the litigant to use the privilege as both a "sword" (to advance their case) and a "shield" (to hide information that might undermine their case).

Here are some examples:

• Legal Malpractice Claim: Imagine a client sues their former attorney, claiming the attorney provided negligent legal advice that caused them significant financial harm. The client's entire case rests on the assertion that the attorney's advice was faulty. To defend against this claim, the attorney would need to reveal the specific advice given, the client's instructions, and all relevant communications between them. By alleging malpractice based on the advice, the client has put the content of that advice "at issue," thereby waiving the attorney-client privilege regarding those specific communications. The attorney needs to present this information to demonstrate their advice was sound or that the client did not follow it.

• "Reliance on Counsel" Defense in a Fraud Case: A company is accused of committing securities fraud. As a defense, the company argues that it acted in good faith and relied entirely on the advice of its legal counsel before making certain financial disclosures. To prove this "reliance on counsel" defense, the company must show what advice it received and how it acted upon it. By asserting this defense, the company has made the content of its communications with its attorneys directly relevant to its intent. The opposing party would then be entitled to review those privileged communications to determine if the advice was actually given, what it covered, and whether the company genuinely followed it in good faith. Without this access, the opposing party cannot effectively challenge the company's defense.

• Willful Patent Infringement Defense: A company is sued for infringing a patent. The plaintiff claims the infringement was "willful," which could lead to significantly higher damages. The defendant company denies willfulness, asserting that it had a good-faith belief that its product did not infringe, a belief based on a formal legal opinion it received from its patent attorney. In this situation, the defendant has put the legal opinion and related communications with its attorney "at issue" to counter the willfulness claim. The plaintiff would then be allowed to examine that legal opinion and the communications surrounding it to assess its adequacy, scope, and whether the company truly relied on it in good faith. This allows the plaintiff to challenge the defendant's claim that its infringement was not willful.