Implied Waiver Expanded to Communications with Third-Party Attorneys

In an attorney malpractice case, a Georgia federal court, predicting Georgia law, expanded the implied waiver doctrine to the client’s communications with third-party attorneys regarding the same subject matter.  Christenbury v. Locke Lord Bissell & Liddell, LLP, 285 F.R.D. 675 (N.D. Ga. 2012).  The implied waiver doctrine, also known as “at issue” waiver or the offensive use doctrine, provides that a client waives the attorney-client privilege when he places privileged information atSlide2 issue–such as when he sues his attorney for malpractice.  The novel question, however, is whether this implied waiver extends to the client’s communications to other (third-party) attorneys who advised the client on the same subject matter.  In this matter of first impression under Georgia law, and where there is a split of authority in other jurisdictions, the court held that implied waiver extends to communications with third-party attorneys.

Claims and Issues

The client in Christenbury sought legal advice from a Texas attorney and an Atlanta attorney regarding tax implications of an investment strategy.  The client later brought a professional negligence suit against the Atlanta attorneys in federal court under diversity jurisdiction.  The Atlanta attorneys alleged comparative negligence against the Texas attorney and moved to compel the client’s communications with the Texas attorney regarding the investment strategy.  The question of first impression before the court was–

Whether a defendant-attorney can discover otherwise privileged communications between a client and other retained counsel as a result of asserting comparative or contributory negligence and failure to mitigate damages defenses.

The Ruling

The court reviewed extrajurisdictional cases extending the implied waiver doctrine to third-party attorneys.  See Pappas v. Holloway, 787 P.2d 30 (Wash. 1990); Rutgard v. Haynes, 185 F.R.D. 596 (S.D. Cal. 1999); Simmons Foods v. Willis, 191 F.R.D. 625 (D. Kan. 2000). And it reviewed a Florida case rejecting extension of the waiver.  Coates v. Averman, Senterfitt & Eidson, P.A., 940 So. 2d 504 (Fla. Dist. Ct. App. 2006).  The court found the Florida decision unpersuasive because Florida disfavors privilege waiver while Georgia narrowly interprets evidentiary privileges. And, with little support, the court stated “federal law has largely found implied waiver” in these situations and therefore predicted that Georgia law would extend the implied waiver doctrine to communications with third-party attorneys.

PoP Analysis

The court’s prediction of Georgia law on the scope of the implied waiver doctrine may prove correct, but one may question the court’s analysis in making this prediction. First, as noted in an earlier PoP Post, the court did not perform a proper conflict of privilege law analysis to determine whether Georgia’s privilege law, or another state’s (Texas) privilege law should apply.  And here, the court applied Georgia law in determining whether a North Carolina client had waived his attorney-client privilege covering communications with a Texas attorney.

Second, the court relied upon two federal-court cases (Rutgard and Simmons Foods) for the authoritative proposition that “federal law has largely found waiver.”  But both of these federal courts had diversity jurisdiction and applied state privilege law, not federal.  And third, the court’s statement that Georgia courts rely upon federal courts’ interpretation of the Federal Rules of Civil Procedure is inapposite.  The federal civil procedure rules do not dictate evidentiary privileges; rather federal common law guides privilege analysis under Federal Rule of Evidence 501.  Evidentiary privileges are substantive, not procedural; and courts should apply substantive privilege law rule interpretations.

The proper analysis should include an analysis of Georgia’s attorney-client privilege and its waiver principles. Perhaps the result would be the same–an extension of the implied waiver doctrine.  But until the proper analysis is completed, the Christenbury decision remains questionable authority.