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Attorney-Client Privilege, Waiver

Although most of the general public is familiar with the concept of the attorney-client privilege, its elements are quite narrow and specific. The attorney-client privilege applies if (1) there is an attorney-client relationship at the time the communication was made or advice was given and (2)  relationship existed with respect to the subject matter of the communication or advice. State ex rel. Koster v. Cain, 383 S.W.3d 105, 116 (Mo. Ct. App. 2012). 

The Missouri Supreme Court has gone into great deal explaining the “sanctity of the attorney-client privilege” in State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 607 (Mo. 1993): “[t]he relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value … than the admissibility of a given piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted.”

Often times the great difficulty in dealing with the attorney-client privilege is to what extent it outweighs the interest in obtaining relevant evidence in litigation. Thus, other court opinions have held that claims of privilege, like the attorney-client privilege, are “impediments to the discovery of truth” and “present an exception to the usual rules of evidence and are carefully scrutinized.” State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804, 807 (Mo. 1984). “Statutes creating privileges ‘must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”Trammel v. United States, 445 U.S. 40, 50 (1980).

Inevitably, if the application of the attorney-client privilege is at issue, waiver will be argued. Waiver is when a client explicitly/implicitly relinquishes the privilege. The waiver must be voluntary. Smith v. Smith, 839 S.W.2d 382, 385 (Mo. Ct. App. 1992). For example, “anticipatory waiver of the attorney-client privilege may occur where the client places the subject matter of the privileged communication in issue in the litigation.”

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