The USA District Courtroom for the District of Rhode Island solid a highlight on the doctrine of implied waiver of attorney-client privilege in a latest False Claims Act (“FCA”) case. The case, United States of America ex rel. James R. Berkley v. Ocean State, LLC, et al., Case No. 20-538-JJM-PAS (D.R.I., June 26, 2024), delves into the implications of asserting an affirmative protection in an FCA case primarily based partly on recommendation of counsel.
In Ocean State, plaintiff alleged that defendants submitted false certifications of compliance in reference to Paycheck Safety Program (“PPP”) loans. Defendants declare that they didn’t act with the requisite scienter as a result of they acted in good religion and in consultations with their attorneys in making use of for the PPP loans. This affirmative protection prompted the plaintiff to hunt discovery of all communications between the defendants and their attorneys regarding the PPP loans, resulting in a contentious debate over the applicability of the attorney-client privilege.
The courtroom’s evaluation hinged on the precept that the attorney-client privilege can’t be wielded as each a sword and a defend. It emphasised that an implied waiver could happen when a celebration’s protection locations attorney-client communications at difficulty, making it unfair to guard these communications from discovery. On this case, the defendants’ assertions of reliance on their good religion perception within the lawfulness of their conduct, underpinned by authorized recommendation, was deemed to have triggered such an implied waiver.
This determination serves as a crucial reminder of the potential implications of protection methods on the preservation of the attorney-client privilege. It highlights the necessity for litigants and their authorized advisors to tread rigorously when contemplating the invocation of authorized recommendation as a cornerstone of their protection, conscious of the danger of inadvertently waiving the attorney-client privilege.
For a deeper exploration of the implications of this ruling and strategic issues in navigating the attorney-client privilege in litigation, we invite you to have interaction with our skilled authorized staff.
