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Case 1:20-cr-00330-PAE Document 528 Filed 12/06/21 Page 2 of 8

that a lawyer’s assistance can only be safely and readily availed of when free from the
consequences or the apprehension of disclosure” (internal quotation marks omitted)). The
privilege “protects communications (1) between a client and his or her attorney (2) that are
intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing
legal advice.” United States v. Krug, 868 F.3d 82, 86 (2d Cir. 2017) (internal quotation marks
omitted).

The attorney-client privilege “belongs solely to the client and may only be waived by [her].
An attorney may not waive the privilege without [her] client’s consent.” In re von Bulow, 828
F.2d 94, 100 (2d Cir. 1987); see Chirac v. Reinicker, 24 U.S. 280, 294 (1826) (“The privilege,
indeed, is not that of the attorney, but of the client . . . .”). Absent such a waiver, however, “the
publication of confidential communications by an attorney does not constitute a relinquishment of
the privilege by the client.” In re von Bulow, 828 F.2d at 100; see Hanson v. U.S. Agency for Int’l
Dev., 372 F.3d 286, 294 (4th Cir. 2004) (“Roy as an attorney could not waive USAID’s right
without USAID’s consent.”).1 Courts have found that clients have impliedly waived the privilege
“when a client testifies concerning portions of the attorney-client communication, when a client
places the attorney-client relationship directly at issue, and when a client asserts reliance on an
attorney’s advice as an element of a claim or defense.” In re County of Erie, 546 F.3d 222, 228
(2d Cir. 2008) (alterations and internal quotation marks omitted). The “quintessential example of
an implied waiver of the privilege” occurs when a client asserts an advice-of-counsel defense. Id.
(internal quotation marks omitted).

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1 In “appropriate circumstances,” an attorney “may . . . possess an implied authority to waive the
privilege on behalf of his client.” In re von Bulow, 828 F.2d at 101 (internal quotation marks
omitted).
2

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