Can a single member of a multi-member council waive the privilege of an institution? | McGuireWoods LLP

Lawyers sometimes represent institutions governed by multi-member boards. These members frequently receive privileged communications from the institution’s lawyers. Under majority rule, senior and even middle managers of an institution who are entrusted with the handling of privileged communications can waive the privilege of the institution if they act in its interest. Is it the same for an individual member of the board of directors?

In Breder c. Foundation Board, No. 15 CV 9323, 2021 US Dist. LEXIS 244867 (ND Ill. Dec. 23, 2021), former college president filing wrongful termination lawsuit claims college board member waived college privilege by disclosing a privileged communication to a stranger. The court rejected the plaintiff’s argument, agreeing with the college that the person “did not have the authority to unilaterally waive counsel’s privilege without the approval of the full board” – so his disclosure did not waived college privilege. Identifier. to *14. All or nearly all courts follow this majority rule, which recognizes that a board collectively controls the institution’s privilege and must act collectively to waive it.

But one wonders how this story unfolds – because the foreigner already has the privileged communication. Presumably, a court’s non-waiver finding in this scenario precludes the use of privileged communication during depositions and denial of its admissibility at trial. And because the unauthorized disclosure occurred in a non-judicial setting, there is generally no risk of waiver of subject matter.

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