Originally published in Law360 - September 20, 2011.
Still regarded as the most important privilege for confidential communications, the attorney-client privilege is integral to an attorney’s need to be fully informed by the client. In light of the privilege’s importance, it is imperative that clients and their counsel take proper steps to ensure the privilege is not waived.
Courts recognize both the express and implied waiver of the attorney-client privilege. Express waivers are fairly easy to recognize: They generally consist of a party knowingly disclosing confidential information to someone to whom the privilege does not apply.
Implied waivers are more difficult to identify. In the first-party insurance context, courts have found an implied waiver in two primary situations. First, the privilege can be waived by an insurance company if it relies on the advice of counsel as a defense to a bad faith claim. For example, Washington state courts have found that if an insurer references the “actual advice given by attorneys or refers to or attempts to put into evidence any suggestion that its adjusters sought, obtained or relied on coverage counsel’s advice, that party waives the privilege.” See Lexington Ins. Co. v. Swanson, 240 F.R.D. 662, 666 (W.D. Wash. 2007); see also Bronsink v. Allied Prop. & Cas. Ins., Case No. 09-751 MJP, 2010 U.S. Dist. LEXIS 29166, *3 (W.D. Wash. 2010).
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