Josh Dunlap Authors Article in Maine Bar Journal: The Attorney-Client Privilege and “At Issue” Waiver

Given the familiarity and breadth of the attorney-client privilege, it might be surprising to think that the privilege could be impliedly waived without affirmatively relying on or otherwise disclosing the substance of a privileged communication during the course of litigation. 

In Maine, the Law Court has never found waiver of the privilege absent reliance, but in Slager v. Bell, the Business Court appeared to endorse a broad implied waiver test that allows for a finding of waiver where a party simply asserts a claim or defense that makes the privileged communication relevant to a case—as, for instance, by asserting a claim or defense that puts the client’s state of mind at issue.

This article assesses Slager and suggests that its articulation of the “at issue” waiver doctrine is overbroad and should not be adopted under Maine law.