Defendants seeking to avoid liability by relying on a lawyer’s advice trigger a classic “implied waiver.” Although asserting that defense does not itself disclose any privileged communications (as with an intentional or unintentional disclosure of privileged communications), fairness prohibits such a litigant from gaining a litigation advantage by pointing to legal advice without disclosing the advice and the related communications.

The implied waiver implications of relying on lawyers’ advice arose in United States v. Bankman-Fried, No. S6 22-cr-0673 (LAK), 2023 U.S. Dist. LEXIS 176572 (S.D.N.Y. Oct. 1, 2023). Judge Kaplan addressed Bankman-Fried’s intent to testify about his awareness that lawyers were involved in FTX’s actions. The government sought to “preclude [Bankman-Fried] from unduly focusing on the fact of attorneys’ involvement.” Id. at *3 (citation omitted). Judge Kaplan barred Bankman-Fried “from referring in his opening statement to the presence or involvement of attorneys” and offering such evidence “absent prior notice to the Court and the government outside of the presence of the jury.” Id. at *9.

Judge Kaplan himself first heard Bankman-Fried’s testimony about FTX lawyers’ involvement — then severely limited what the jury could hear of that. Apparently they weren’t very impressed. The next two weeks’ Privilege Points will describe two other recent cases addressing this “advice of counsel” issue.