The Frightening At-Issue Exception to the Attorney-Client Privilege

Abstract

The attorney-client relationship is understood by lawyers and the public to be infused with confidentiality, and the attorney-client privilege, which is essential to this sensitive and important relationship, is much revered. As vital as it may be, however, the attorney-client privilege is narrowly construed, laden with exceptions, and easily waived. On the theory that the attorney-client privilege is intended for use as a shield and not as a sword, it may be lost if a litigant asserts a claim or defense that requires inquiry into the litigant’s privileged communications with its lawyer to fairly rebut or refute. This principle is commonly described as the “at-issue exception” to the attorney-client privilege. The at-issue exception represents the most frightening type of privilege forfeiture because the law does not clearly warn clients of its risk and because lawyers may not realize its effect in time to avoid calamity. For this reason, lawyers must understand courts’ analysis and application of the at-issue exception. This article advances that process. In doing so, it carefully examines and critiques the three principal tests courts use to decide whether the at-issue exception applies, and discusses several types of cases and circumstances in which lawyers seem especially prone to missing the serious threat to the attorney-client privilege that the at-issue exception potentially poses.