The Attorney-Client Privilege After Attorney Disclosure

This Note examines the interests that must be balanced in determining when an attorney’s disclosure waives the attorney-client privilege. Part I presents three judicial standards defining the class of attorney disclosures that waive the privilege: the traditional client consent rule that only attorney disclosures to which the client has consented constitute waiver; the broader “implied authority” view that attorney disclosures made with the client’s consent or with an intent to further the client’s cause constitute waiver; and the still more expansive view that all attorney disclosures falling within the scope of the attorney’s agency authority to act for the client waive the privilege. Part II examines how the primary purpose of the attorney-client privilege – to encourage full and free communication between attorney and client – is promoted by upholding the privilege even after an attorney’s disclosure without his client’s consent. Part III turns to two other societal interests – judicial efficiency and fairness to opposing parties – that adherence to the client consent rule may impair, and balances these interests against that of free communication in the context of in-court and out-of court attorney disclosures. It concludes that for attorney disclosures made out of court, neither fairness nor judicial efficiency provide sufficient reason to deviate from the client consent rule. For attorney disclosures made in court, however, Part III concludes that a court could find that fairness and judicial efficiency justify holding the privilege waived.