Pleading “advice of counsel” as a defense creates a classic “implied waiver” of the attorney-client privilege. The defense does not actually reveal the substance of any privileged communications, but simple fairness requires a party relying on “advice of counsel” to disclose the lawyer’s advice, and the client’s communications that prompted the advice.
In Sedillos v. Board of Education, 313 F. Supp. 2d 1091, 1094 (C.D. Ohio 2004), the court found (not surprisingly) that a school board’s affirmative defense of “advice of counsel” created a subject matter waiver covering all communications about the advice. Just one day earlier, the court in Engineered Products Co. v. Donaldson Co., 313 F. Supp. 2d 951 (N.D. Iowa 2004) applied essentially the same rule – but in a very different setting. In that case, one party’s witness had testified during a deposition that its lawyer was the source of the witness’s belief that the party had “sat on its rights.” Id. at 1021. The court found that the party’s lawyer’s failure to object to this deposition question caused a subject matter waiver because the party was essentially asserting an “advice of counsel” defense. Id. at 1022.
Given courts’ different approaches to what can amount to assertion of an “advice of counsel” defense, litigants should be very wary of allowing deposition witnesses to identify the source of any belief underlying their defenses.