Parties often take actions, or refrain from taking actions, based on advice they receive from their attorneys. If they are then sued, should they defend their conduct by asserting that they relied on their counsel? This article discusses assertion of advice of counsel as a defense, either explicitly in a pleading or implicitly through a party’s actions, and the implications to the attorney-client privilege and the attorney work-product doctrine. The question of whether a waiver has occurred and the scope of waiver are fact-intensive inquiries. Some guiding principles, however, have emerged which should help parties avoid or limit the scope of a possible waiver.

Two Doctrines

It is axiomatic that privilege may not be used both as a sword and shield. A party relying on advice of counsel faces the risk that the court will pierce the shield and require disclosure of privileged communications. However, not every reference to legal advice will result in waiver. The U.S. Court of Appeals for the Second Circuit has emphasized that potential unfairness resulting from protecting the privilege underlies any type of waiver determination. Whether fairness requires disclosure “depends primarily on the specific context in which the privilege is asserted.”1 With respect to reliance on advice of counsel, at least two doctrines may be implicated: at-issue waiver and selective disclosure.

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