Kenneth Duvall

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Ask a non-lawyer what the purpose of the judicial system is, and a popular answer would surely be to determine what happened between the parties. However, every attorney knows that the adversarial process is not as straight-forward as that, as many interests must be juggled by the judge as well as by the attorneys in the case. One of the interests that should be protected is the need for a legal mechanism within which clients can freely discuss their problems with their attorneys. This need is largely satisfied by the attorney-client privilege, which necessarily acts as one of the great impediments to the pure truth-seeking function of the courts. Courts have long been willing to sacrifice one avenue to evidence of what happened between the parties in order to facilitate open discourse between client and lawyer so that society can reap the expected benefits of that relationship, ranging from clients that seek judicial (as opposed to extra-judicial) remedies, to clients that are more capable of behaving properly in an increasingly complex regulatory state. Yet striking the right balance between a robust privilege and a system that discovers the truth has always been, and will always be, difficult. This problem is inherent in the nature of privilege itself—just glance at the uproar over the psychotherapist-patient privilege exception from Tarasoff v. Regents of the University of California to see how contentious privileges and their exceptions have been. The attorney-client privilege, though, seems a particularly vociferous privilege battleground, if only because every lawyer’s skin is in the game. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege—the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place the otherwise privileged communications at issue in the litigation, not through an explicit wavier, but instead through their conduct. This type of waiver is valid in theory, but disagreement over what actions constitute “putting communications at issue” is rampant. Proponents of a stout privilege, fearing that a liberal interpretation of “at issue” would chill attorney-client communications, claim that communications should only be considered at issue when a party explicitly relies on them. This “pro-privilege” faction essentially pushes for a hard and fast rule under which only expressly referenced communications will be put at issue. Their opponents, worried that a rigid privilege allows the holders to tell only the part of the story that helps their side and leave out the rest in the name of “privilege,” contend that communications should be considered at issue even when a party places them there implicitly, or takes an affirmative act in litigation that makes them relevant and vital. For those in this “pro-evidence” camp, a malleable standard that takes into account the needs of the case is preferable to a bright-line rule. This article will examine both sides of this argument in detail, and in order to give shape to the debate, will focus in on a particular scenario where the at-issue dispute comes to a head—the “discovery rule.” When a defendant pleads the statute of limitations, plaintiffs can avoid that defense by pleading the discovery rule, which allows plaintiffs to toll the running of the statute until the point when they discovered, or should have discovered, that they had a cause of action (or at least an injury that required legal advice). Whenever the discovery rule is live, defendants understandably wish to know whether plaintiffs spoke with their attorneys about their possible cause of action at a time such that their actions will now be timebarred. Should a court wait for the plaintiffs to expressly rely upon their communications with their attorneys in order for the privilege to be waived, or should other actions by the plaintiff short of that amount to a waiver? After laying the groundwork for understanding rules and standards generally, I apply a diverse set of arguments ranging from the doctrinal to the empirical in an attempt to resolve the at-issue dispute, at least within the discovery rule context, with the aim that the solution be generalizable to the larger privilege context.

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Northern Illinois University Law Review

Suggested Citation

Kenneth Duvall, Rules, Standards, and the Attorney-Client Privilege: When the Privilege Is “At-Issue” in the Discovery Rule Context, 32 N. Ill. U. L. Rev. 1 (2011).

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