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

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…

Court Orders Production of Documents Shared with Litigation-Financing Firm 1

Companies searching for capital to fund litigation pursuits must first persuade a potential investment firm of the claim’s merits.  These persuasion efforts often include the company’s counsel sharing legal analyses and other work-product documents with a putative financier.  But this sharing leads defendants to later claim privilege waiver and seek production of the shared information.

While some courts, such as the one profiled here, have rejected these waiver claims, the Delaware federal court bucked this trend.   The court rejected the work-product and common–interest doctrines and ordered a company to produce its emails and documents shared with a potential litigation-financing firm.  Acceleration Bay LLC v. Activision Blizzard, Inc., 2018 WL 798731 (D. Del. Feb. 9, 2018).  You may read the opinion here.


Before pursuing a patent-infringement action, Acceleration Bay LLC and its counsel communicated with Hamilton Capital about financing the litigation effort.  Acceleration also provided documents so that Hamilton Capital could conduct due diligence before deciding whether to provide capital.  This information exchange occurred before Acceleration and Hamilton Capital entered an agreement or filed litigation which, as we’ll see, is apparently a big deal. 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.