Does Advice-of-Counsel Defense Waive Privilege for In-House Lawyers?

Aa a general rule, clients waive the attorney–client privilege when they assert an advice-of-counsel defense and, consequently, must produce their lawyer’s advice-related communications.  The waiver’s scope, however, is not as well-known.  Does the waiver apply to communications with outside counsel and in-house lawyers?

The Utah federal court faced this specific question and narrowly construed the scope of waiver.  The court held that a client’s advice-of-counsel defense waived the privilege over its communications with outside counsel, but that the waiver did not extend to its communications with in-house counsel.  Hoopes v. Owners Ins. Co., 2018 WL 1183374 (D. Utah Mar. 6, 2018).  You may read the decision here.

Bad-Faith Claim

A Geico insured struck an 11-year-old pedestrian on Main Street in Heber City, causing severe injuries to the minor. Geico paid its insurance limits, but the minor’s mother filed breach-of-contract and bad-faith claims against her uninsured-motorist carrier when it failed to promptly settle that matter.

The UIM carrier had retained outside counsel to investigate and opine on coverage and payment issues.  The carrier asserted the advice-of-counsel defense and agreed that the defense waived the privilege over its communications with outside counsel.  The carrier, however, refused to produce communications between its claims adjuster and in-house lawyer.

Sword and Shield

The mother moved to compel the claims-adjuster–in-house lawyer communications, essentially arguing that waiver is a broad concept and must include all advice-related communications, including those with in-house counsel. More…

Smart Phones and Privilege Issues at the Canadian Border

A lawyer and his smart phone—that inseparable couple— create unique privilege issues when they cross an international border.  Border agents may demand to search your phone, including emails protected by the attorney–client privilege.

Several articles over the last several months, including this one from the ABA and this one from The New York Times, discuss U.S. Customs and Border Protection (CPB) agents’ authority to search a lawyer’s phone when she crosses the border.  The CPB has a policy directive, available here, that governs the search of a lawyer’s phone when the lawyer raises the privilege issue.  And the New York City Bar Association issued an ethics opinion, available here, instructing lawyers how to handle  U.S. border agents’ inspection of lawyers’ smart phones.

But what about policies and laws when lawyers cross the Canadian border?  May the Canadian Border Services Agency demand to search your privilege-laden phone?  Are there strategies, technologies, and other practice tips for handling search demands? Will the CBSA care about Canada’s solicitor–client privilege?

I don’t have the answer, but fortunately Toronto lawyers Nader R. Hasan and Gerald Chan do.  In their article, Flying With Your Cell Phone? Here’s What You Need to Know, Hasan and Chan identify the issues and offer practical tips for protecting privileged information when crossing the Canadian border.  You may read the article here.

My thanks to Susan Gunter of the Dutton Brock firm for alerting me to the issue and the article.  Enjoy.

“Pardon Me, Boy,” Does Release of Atty’s Investigation Report Waive the Privilege?

Chattanooga—home to beautiful scenery, Civil War battlefields, the Jimmy Hoffa trial, and the “Track 29” train’s destination in (“Pardon me, boy, is that the”) Chattanooga Choo Choo—is the setting for the latest judicial opinion on internal investigations and privilege waiver.

Chattanooga Choo Choo Station Platform

In a case involving a lawyer’s investigation into sexual-assault allegations involving a high-school basketball team, the USDC for EDTN held that the local school board’s publication of the lawyer’s report waived privilege and work-product protections for the lawyer’s underlying interviews and communications, including emails with another Board attorney.  Doe v. Hamilton County Board of Education, 2018 WL 542971 (ED Tenn. Jan. 24, 2018).  You may read the decision here.

The Investigation Report

Upon learning of sexual-assault allegations involving Ooltewah High School boys’ basketball team (Washington Post story available here), the Hamilton County (Chattanooga) Dep’t of Education retained Chattanooga attorney Courtney Bullard to independently investigate the OHS issue and provide legal advice to HCDE.  You may read the HCDE–Bullard engagement letter here.

HCDE, presumably for public-relations purposes, later released Bullard’s report for public consumption.  You may read the actual report here.

The alleged sexual-assault victims sued HCDE and moved to compel 130 of Bullard’s emails, including emails with another Board attorney, Scott Bennett.  HCDE claimed that the attorney–client privilege and work-product doctrine protected these communications from disclosure (privilege log available here).

Ruling

Magistrate Judge Chris Steger, correctly applying federal common law, held that parties may waive the attorney–client privilege upon disclosure of privileged information to third-parties, and that the waiver may extend “to all privileged communications on the same subject matter.”

But HCDE only released the report—not communications related to the report—so did waiver apply?  Finding the USDC’s decision in Doe v. Baylor Univ., 320 FRD 430 (W.D. Tex. 2017), “directly on point, well-reasoned and persuasive,” Judge Steger ruled that, when the Board released Bullard’s report, “it waived the attorney–client privilege as to the entire scope of the investigation, … and all materials, communications, and information” provided to Bullard during her investigation. More…