My Attorney Told Me To…Opening the Door and Waiver of the Attorney-Client Privilege

By Nicole M. Ehrhart, Esq.*

The United States District Court for the Middle District of Pennsylvania has once again considered the issue of waiver of the attorney-client privilege. In Piazza v. County of Luzerne, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015), the plaintiff claimed he was unlawfully terminated from his position as director of elections in Luzerne County because of his lack of political affiliation with a particular candidate, political officials, parties and factions in power in Luzerne County. The plaintiff filed a motion based upon the defendant’s, Robert Lawton, assertion of the attorney-client privilege during the course of his deposition. The issue before the court was whether Lawton waived the attorney-client privilege when he asserted at his deposition that counsel’s advice was the reason the plaintiff was terminated. Lawton made a simple statement: “I did so on the advice of counsel.” Judge Conaboy found that this statement was enough to waive the attorney-client privilege.

“It is well-established that the scope and conduct of discovery are within the sound discretion of the trial court.” Marroquin-Manriquez v. Immigration and Naturalization Serv., 699 F.2d 129, 134 (3d Cir. 1983). The Federal Rules of Civil Procedure permit discovery of “any matter, not privileged, that is relevant to the claim or defense of any party.” Fed. R. Civ. P. 26(b)(1). Discovery is not limited solely to admissible evidence but encompasses matters that “appear reasonably calculated to lead to the discovery of admissible evidence.” See Id.; Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).

It is well known that attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383 (1981). As the “oldest of the privileges for confidential communications known to the common law,” it serves the purpose of “foster[ing] disclosure and communication between the attorney and the client.” “The privilege forbidding the discovery and admission of evidence relating to communications between attorney and client is intended to ensure that a client remains free from apprehension that consultations with a legal advisor will be disclosed.” Piazza, 2015 U.S. Dist. LEXIS 147283 at 5.

A party may waive the attorney-client privilege by asserting claims or defenses that put his or her attorney’s advice at issue in the lawsuit. Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851 (3rd Cir. 1994). In other words, by making the decision to take an affirmative step to place the advice of counsel in issue in the litigation, “the client has opened to examination facts relating to that advice.” Martin Marietta Materials, Inc. v. Bedford Reinforced Plastics, Inc., 227 F.R.D. 382 (W.D. Pa. 2005) (citing Rhone-Poulenc Rorer Inc., 32 F.3d at 863).

Courts have found that by placing the advice in issue, the client has opened to examination facts relating to that advice. Advice is not in issue merely because it is relevant, and advice does not necessarily become an issue merely because it might affect the client’s state of mind in a relevant manner. The advice of counsel is placed at issue when the client asserts a claim or defense and attempts to prove that claim or defense by disclosing or describing an attorney-client communication. Rhone-Poulenc Rorer Inc., 32 F.3d at 863 (citing North River Ins. Co. v. Philadelphia Reinsurance Corp., 797 F. Supp. 363, 370 (D.N.J. 1992)). The Third Circuit has clearly identified a “two-step inquiry into whether the privilege has been waived due to advice of counsel: (1) the assertion of a claim or defense, and (2) an attempt to prove that claim or defense by disclosing or describing an attorney client communication.”

In Piazza, the court found that the defendant disclosed an attorney-client communication when he said he terminated the plaintiff on the advice of counsel, and his testimony further established that he relied on the communication in his decision to terminate the plaintiff. Bottom line: be careful not to put the advice of counsel at issue in litigation if you desire to preserve the attorney-client privilege.

*Nicole, an associate in our Harrisburg, Pennsylvania office, can be reached at 717.651.3512 or NMEhrhart@mdwcg.com.

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_{Defense Digest, Vol 22, No. 1, March 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}