Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Ninth Circuit Holds There Is No “Selective Waiver” of the Attorney-Client Privilege Under Federal Law

In Pacific Pictures Corp. v. United States District Court, 2012 U.S. App. LEXIS 7643 (9th Cir. Cal. Apr. 17, 2012), the Ninth Circuit Court of Appeals concluded that voluntary compliance with a government subpoena constituted a waiver of the attorney-client privilege under federal law. 

The waiver occurred as a result of an attorney inviting an F.B.I. investigation into the theft of privileged documents, and then producing those materials without objection to the F.B.I. in response to a grand jury subpoena.  Contemporaneously, the opposing party in related litigation sought to obtain the documents produced to the F.B.I. through discovery.

The attorney opposed the discovery by asserting the theory of “selective waiver” adopted (only) by the Eighth Circuit.  In declining to accept selective waiver based upon a disclosure to the government, the Ninth Circuit noted that such a policy would not serve the public good underpinning the attorney-client privilege.  That is, encouraging a client’s candor to counsel to facilitate legal representation.

The Court of Appeals acknowledged it could create a privilege to encourage cooperation with the government in order to promote adherence to the law, but deferred to Congress on this issue after noting prior unsuccessful legislative efforts.

The Court also took exception to a purported confidentiality agreement which the disclosing attorney entered into with the F.B.I.  It found no compelling reason to conclude that post hoc contracts regarding how information may be revealed will encourage a frank conversation at the time legal advice is rendered.

Similarly, the Court rejected arguments based upon the theft of the documents creating a “common interest” between attorney and government.  An effort to analogize a “joint defense” privilege proved unavailing since the attorney did not disclose information to the government in furtherance of a joint strategy in accordance with some form of agreement—whether written or unwritten.

-- Eric R. Deitz

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**