Legal Definitions - offensive-use waiver

Offensive-Use Waiver

An offensive-use waiver is a legal principle that allows an opposing party to access information normally protected by the attorney-client privilege. This exception occurs when a person or entity (the "litigant") brings a lawsuit or seeks a specific legal outcome, and their claim:

• Relies directly on information that was communicated confidentially between them and their lawyer.
• Is so dependent on this privileged information that the outcome of the case would be determined by it.
• Makes it impossible for the opposing party to fairly defend themselves without access to that specific privileged information, as there is no other way for them to obtain it.

In essence, if you use your confidential legal advice as a sword to win your case, you might be forced to reveal that advice so the other side can properly defend against your claim.

Here are some examples illustrating an offensive-use waiver:

• Example 1: Suing a Former Attorney for Malpractice

  Imagine a business, "Tech Innovations Inc.," sues its former law firm, "Legal Solutions LLP," for legal malpractice. Tech Innovations claims that Legal Solutions provided negligent advice regarding a crucial contract, which led to significant financial losses for the company. To prove their claim, Tech Innovations must demonstrate what advice was given, how it was flawed, and how they relied on it to their detriment.

  How this illustrates the term: Tech Innovations is seeking "affirmative relief" (damages) by suing their former lawyers. Their entire claim hinges on the content of the confidential communications (the legal advice) between them and Legal Solutions. Legal Solutions, to defend itself, absolutely needs to present its version of the advice given and the information it received from Tech Innovations. Since the core of the dispute is the privileged advice itself, and Legal Solutions cannot defend without revealing it, a court would likely find that Tech Innovations has offensively waived its attorney-client privilege regarding those specific communications.

• Example 2: Claiming Reliance on Legal Advice in a Contract Dispute

  Consider a scenario where "Green Acres Development" enters into a complex land purchase agreement. Later, Green Acres sues the seller, "Urban Properties LLC," claiming that Urban Properties misrepresented certain environmental conditions of the land. Green Acres asserts that they would never have signed the contract if they had known the true conditions, and that they relied on their own lawyer's interpretation of the contract's environmental clauses, which was based on Urban Properties' representations.

  How this illustrates the term: Green Acres is seeking to void the contract or claim damages (affirmative relief). If Green Acres argues that their decision to sign was based on their lawyer's advice, which in turn relied on the alleged misrepresentations, they are putting the content of their privileged communications with their lawyer directly at issue. Urban Properties would need to understand what advice Green Acres received and what information their lawyer relied upon to defend against the misrepresentation claim. If this privileged information is outcome-determinative and Urban Properties has no other way to obtain it, Green Acres may be deemed to have waived the privilege by offensively using their reliance on legal advice as part of their claim.

• Example 3: Alleging Fraud and Relying on Attorney's "All Clear"

  An individual, "Mr. Davies," sues a financial institution, "SecureBank," for fraud, alleging that SecureBank misled him into a high-risk investment. SecureBank defends by arguing that Mr. Davies was fully informed of the risks and had even consulted his personal attorney, who reviewed all the investment documents and advised him to proceed. Mr. Davies, in turn, claims that his attorney's advice was based solely on the misleading information provided by SecureBank and that he relied on his attorney's "all clear" as a direct result of SecureBank's fraud.

  How this illustrates the term: Mr. Davies is the litigant seeking "affirmative relief" (damages for fraud). His claim that he relied on his attorney's "all clear" (which he attributes to SecureBank's fraud) directly puts his attorney's advice at the center of his case. He is using his attorney's advice as a link in the chain of causation for the alleged fraud. The content of the advice Mr. Davies received from his attorney, and the information his attorney relied upon, is crucial to determining if SecureBank's alleged fraud truly caused Mr. Davies' reliance and subsequent damages. SecureBank cannot fully defend against the fraud claim, particularly regarding Mr. Davies' reliance and causation, without understanding the nature of the legal advice he received and the information his attorney was given. Therefore, Mr. Davies may be found to have offensively waived his attorney-client privilege.