Thursday, April 9, 2009

Privilege Waived

An employee of a paper mill sought workers compensation benefits from his employer and claimed that he was unaware of the basis of the claim until he had consulted with a lawyer. This late-blooming realization was asserted as a reason to permit the otherwise untimely filing of the claim. The trial court sustained an objection to any inquiry into the claimed conversations by the employer's lawyer on the grounds of attorney-client privilege. The trial court concluded that the employee had operated under a mistake of fact as to the cause of a second back injury until the lawyer, who was consulted concerning Social Security benefits, saw the issue. 

The Maine Supreme Judicial Court reversed and remanded, concluding that reliance on the conversation with counsel as a way to avoid the limitations problem constituted a waiver of any privilege: " [The employee] asserted the attorney-client privilege, not to keep the communication with his attorney confidential-he had already published the communication- but to prevent inquiry into the credibility of his 'mistake of fact' claim that rested on his attorney-client communication."  (Mike Frisch)

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