TURNING OUT THE "LIGHT OF REASON AND EXPERIENCE": THE SELECTIVE WAIVER DOCTRINE AND PROPOSED FEDERAL RULE OF EVIDENCE 502

St. John's Law Review, Fall 2007 by Lambert, Michelle

Neither the same instrumental theory nor the privacy rationale that supports the attorney-client privilege can also justify the selective waiver doctrine. The Supreme Court recognized an instrumental justification for the attorney-client privilege.136 The Court reasoned that the client would never have disclosed the privileged communications to the attorney in the first place without the knowledge of the existence of the attorneyclient privilege.137 Alternatively, if utilizing the privacy rationale to justify the attorney-client privilege, the trusting and open relationship between the attorney and client fosters the existence of a privileged communication.138 Quite plainly, both the instrumental theory and privacy rationale are based on the creation or growth of "full and frank" communications between the attorney and client.139 However, disclosure of information to the government by the client "has little to do with" the open and frank conversation justification for the attorney-client privilege.140

First, the selective waiver doctrine has no effect on the initial conversation between attorney and client.141 In reality, the client would have already openly and frankly communicated with the attorney prior to disclosure of any information to the government.142 "If clients themselves divulge such information to third parties, chances are that they would also have divulged it to their attorneys, even without the protection of the privilege. Thus, once a client has revealed privileged information to a third party, the basic justification for the privilege no longer applies . . . ,"143 Therefore, the selective waiver doctrine only applies after the client has openly and frankly discussed the matter with the attorney. Thus, the attorney-client privilege and the selective waiver doctrine cannot be justified on the same grounds.

Additionally, the selective waiver doctrine is not like other "exceptions" to the general rule that disclosure to a third party waives the attorney-client privilege.144 Other exceptions "are consistent with the goal underlying the privilege because each type of disclosure is sometimes necessary for the client to obtain informed legal advice."145 Examples of these "exceptions" are the presence of interpreters, secretaries, or paralegals during communications between the attorney and the client.146 In contrast, the government is in no way a necessary third party for the client to obtain legal advice or the attorney to render legal advice.147 Therefore, selective waiver fails to qualify as an exception to the third party general waiver rule because the selective waiver doctrine's promotion of allowing the government "in" on the communication does not further the privilege's purpose of "open and frank" communication.

In fact, the doctrine could even undermine the purpose of the attorney-client privilege by inhibiting communication between the attorney and client. This may happen when an employee of the client does not divulge information because he or she knows that the employer has no further risk of third party liability due to the disclosed privileged communications whereas the employee still may be at risk, thus, creating a divide between the concerns of the employee and the employer.148 Additionally, even though the selective waiver doctrine will allow corporations to maintain their privilege as to third parties, it will not protect them from the government passing documents from agency to agency.149 With this knowledge on hand, further inhibition of the corporate attorney-client relationship may occur.150