The attorney-client privilege protects confidential communications between the attorney and client from disclosure if the client was seeking legal advice. But even where all the elements of the attorney-client privilege are otherwise present, the privilege will not be recognized if it has been waived.
The term “waiver” as used by the courts actually encompasses more than the traditional definition of a knowing and voluntary waiver of a right. Courts often find a “waiver” of the privilege that is really more appropriately considered a “forfeiture,” for example, where the client or lawyer has not intentionally waived a privilege but has acted in such a way as to disentitle the client from invoking the privilege. See International Oil, Chem. & Atomic Workers Local 7-517 v. Uno-Ven Co., 1790 F.3d 779 (7th Cir. 1999) (noting that a “waiver” of the privilege is sometimes found “in order to punish the person claiming the privilege for a mistake.”).
