The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules

Abstract

In recent years, the American Bar Association and state bars have deferred to lawmakers to create a legal solution to the problems associated with inadvertent disclosure. When Federal Rule of Evidence 502 was enacted in September 2008, lawmakers and commentators praised the new rule as a remedy to costly pre-production privilege review and as an answer to the uncertainties of waiver law.

This article examines the numerous inadvertent disclosure issues that remain unanswered for litigators and transactional attorneys, and considers the new problems created by Federal Rule of Evidence 502. In 2009, transactional attorneys have no practical means to obtain the return of an inadvertently disclosed document; litigators have limited abilities to protect the content of a privileged document pending a waiver ruling; and all attorneys face uncertainty in addressing confidential information in metadata. Compounding these problems, Rule 502 incentivizes little or no pre-production privilege review (encouraging quick peek and clawback orders), even though there is a continuing risk of waiver under the rule. Further, determining professional conduct obligations to prevent and respond to inadvertent disclosure is often difficult given the various rules, ethics opinions, and cases that address the issue.

The bar's interests in confidentiality, compliance with professional conduct rules, and efficiency in an era of increasing inadvertent disclosures would be furthered by a professional conduct solution to these problems. This article proposes two professional conduct rule changes that complement Federal Rule of Evidence 502, but also stand alone to answer inadvertent disclosure issues for litigators and non-litigators.

Keywords: inadvertent disclosure, clawback, quick peek, waiver, attorney-client privilege, work product, technology, evidence, practice and procedure