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Second Circuit Reins in Risk of 'At-Issue' Attorney-Client Privilege Waivers

By Michael Dockterman and Beth L. Fancsali

We are proud to say that we live by the Rule of Law. But in law, as in most other endeavors, exceptions can swallow the rules if the rule-makers are not careful. One area where exceptions pose a particular concern is when the privilege over communications with lawyers is called into question because those communications have been invoked to show someone's good faith in attempting to follow the law. It seems only fair to require someone to disclose what her lawyer actually said when she implies that she was acting in good faith because a lawyer told her that her conduct was lawful. But how far can the exception go before it swallows the rule and opens the door to disclosure of all legal communications, even when the substance of the communication is not “at issue”? This was the question recently before the United States Court of Appeals for the Second Circuit, which tried to bring clarity to a rule that has confused the courts for more than 30 years.

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