A recent federal appeals court ruling raised eyebrows for its view of an implied privilege waiver. Waivers can be express or implied. The former can occur with the disclosure of a document’s content. The latter can be more subtle and complicated, because it can occur without such a disclosure.
In United States v. SpineFrontier, Inc., a district court held that a criminal defendant’s “intent to invoke an ‘involvement-of-counsel’ defense at his [Anti-Kickback Statute] criminal trial” triggered an implied waiver. 160 F.4th 212, 215 (1st Cir. 2025). The First Circuit vacated the implied waiver order, noting that defendant did not intend to suggest that a lawyer approved the challenged conduct. The court described a safe harbor as, “for example, if [defendant] were to argue only that he would be less likely to break the law intentionally based on [his employer]’s decision to retain [a law firm], a waiver finding would not be warranted because [defendant] would not have revealed any privileged communication.” Id. at 219.
The court tempered this remarkable invitation by noting that the district court “should consider addressing any [possible] prejudice through a limiting instruction.” Id. It would seem almost inevitable that jurors hearing such a defense would think the criminal defendant had received a lawyer’s general or specific approval of his or her conduct.
