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Implied Waiver of the Attorney-Client Privilege: Another Consequence of Bad Faith Claims
To outsiders of the legal community, no rule is more familiar than the attorney-client privilege. In simple terms, what a client tells his attorney is supposed to stay between the client and his attorney. It is this covenant of secrecy that prompts some (but certainly not all) clients to be honest and forthcoming with the facts underlying a particular claim. In turn, it allows the attorney to provide the most effective representation to his/her client. Yet, in the world of bad faith claims, courts have proved willing to find that an insurance company has impliedly waived the attorney-client privilege even in cases when the insurer has not argued that it relied upon the advice of counsel in denying the claim. See Steven Plitt, The Elastic Contours of the Attorney-Client Privilege and Waiver in the Context of Insurance Company Bad Faith: There's a Chill in the Air, 34 Seton Hall L. Rev. 513 (2004).
Implied Waiver
The relevant and vital rule was born in Hearn v. B.J. Rhay, 68 F.R.D. 574 (E.D.Wa. 1975). This rule is followed by a majority of jurisdictions and seems to rest on the proposition that when a party's state of mind is in issue, a waiver of the attorney-client privilege may be found. See Timothy P. Glynn, Federalizing Privilege, 52 Am. U. L. Rev. 59, 118-19 (2002). In Hearn, plaintiff was a prison inmate alleging numerous violations of his federal civil rights. Defendant-prison officials asserted the affirmative defense that their actions were taken in good faith. As such, plaintiff sought discovery of the legal advice provided to defendants by the state attorney general. Although the court held that the attorney-client privilege applied to the communications, it held that the defendants waived the privilege by virtue of the assertion of the good faith defense.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.