New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept
46 Pages Posted: 21 Jan 2009
Date Written: 1995
This Article focuses on the attorney's legal and ethical responsibilities to the client and analyzes the three tests of waiver the courts use in terms of their impact on promoting attorney responsibility. Part One describes the current caselaw governing inadvertent disclosure. It also describes the American Bar Association's (ABA) first formal ethical opinion on inadvertently disclosed information that appears to advocate a variation of the subjective intent test by creating a presumption against waiver that must be overcome by the receiving attorney. The opinion takes this position by stressing the forwarding attorney's property rights in the document. Part Two discusses the attorney-client privilege and its analytic counterpart, the ethical duty of maintaining confidentiality, identifies the goals of each and the tension that has developed between them, and how they may be reconciled. Part Three analyzes each test from an attorney responsibility perspective and concludes that the reasonable precautions test best serves the client's interests, and therefore has systemic benefits, by properly forcing the attorney to bear the risks of inadvertent disclosure. It reconciles the ABA opinion with this conclusion by making two suggestions. First, to the extent that one views the ABA opinion as adopting the subjective intent test, the opinion should be limited to its facts-the instance of a single, errant disclosure, rather than applying it to the far more common occurrence of the inadvertent disclosures taking place within a complex litigation with massive document productions. Second, the Article demonstrates that the ABA opinion, with its emphasis on property rights, in fact, endorses a reasonable precautions test.
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