Unlike an express waiver, an implied waiver can occur without
the client actually disclosing any privileged communications or
work product. Instead, an implied waiver can occur if the client
relies on the fact of the protected communications, or otherwise
puts such communications "at issue" by asserting some
claim or defense. In a classic situation, a client impliedly waives
the privilege by suing a former lawyer for malpractice.
One key issue involves the scope of such an implied waiver. In
Lyon Financial Services, Inc. v. Vogler Law Firm, P.C ., Case No.
10-cv-565-JPG-DGW, 2011 U.S. Dist. LEXIS 99353 (S.D. Ill. Sept. 2,
2011), the court found that such an implied waiver required the
client to disclose communications with replacement counsel. The
court pointed to "fundamental fairness," and noted that
without those communications the defendant law firm "would be
effectively precluded from challenging the causation and actual
damages prongs for legal malpractice." Id.
