- Only the privilege-holder may
- waive a privilege.
- Subject Matter Waiver
A waiver as to some communications will waive privilege as to other communications if:
(a) the partial disclosure is intentional
(b) the disclosed and undisclosed communications concern the same subject matter
requires that the disclosed and undisclosed communications be considered together.
An inadvertent disclosure will not waive the privilege, so long as the privilege-holder:
(a) took reasonable steps to prevent
the disclosure; and
Exceptions to Privilege
- (b) took reasonable steps to rectify the error.
- (pro forma notice at bottom of law firm emails)
- Future Crime or Fraud
- (client communication asks for help concealing bribes)
- Holder puts the content in issue
- (D in tax fraud case claims attorney told her to do it; P in personal injury suit puts her physical condition in issue.)
- Dispute between the holder and the professional
- (fee disputes; malpractice suits)