There are well-known ways to waive the protection of the attorney-client privilege: for example, the intentional disclosure of an initially confidential communication to someone outside of the privileged relationship waives the privilege; accusing your lawyer of malpractice also waives the privilege. But there are also some less well-known ways to waive the attorney-client privilege that can trip up the unwary.

Vitamin Energy v. Evanston Insurance illustrates two relatively unusual ways to lose the protection of the privilege. In that case, Vitamin Energy Inc. (VEI) sought a declaration that Evanston Insurance Co. (EIC) had a duty to provide insurance coverage and defend VEI in a separate, underlying suit. VEI also alleged that EIC’s denial of coverage was in bad faith. In discovery, EIC disclosed that its claims handler had consulted with an in-house lawyer regarding VEI’s claim for coverage. During the claims handler’s deposition, EIC’s litigation counsel invoked the attorney-client privilege, refused to permit testimony about the substance of the communications with the in-house lawyer, and affirmatively disclaimed that EIC would rely on an advice-of-counsel defense.