Inadvertent Disclosure, the Attorney-client Privilege, and Legal Ethics: an Examination and Suggestion for Alaska

• Jurisdiction: Alaska,United States
• Publication year: 2002
• Citation: Vol. 19

§ 19 Alaska L. Rev. 461. INADVERTENT DISCLOSURE, THE ATTORNEY-CLIENT PRIVILEGE, AND LEGAL ETHICS: AN EXAMINATION AND SUGGESTION FOR ALASKA

Alaska Law Review
Volume 19
Cited: 19 Alaska L. Rev. 461

INADVERTENT DISCLOSURE, THE ATTORNEY-CLIENT PRIVILEGE, AND LEGAL ETHICS: AN EXAMINATION AND SUGGESTION FOR ALASKA

Joshua K. Simko

I. INTRODUCTION

II. THREE COMMON WAIVER APPROACHES TO INADVERTENT DISCLOSURE

A. The Strict Responsibility Approach

B. Criticism of the Strict Responsibility Approach

C. The No Waiver Approach

D. Criticism of the No Waiver Approach

E. The Balancing Test Approach

F. Criticism of the Balancing Test

G. Summary

III. GUIDELINES GOVERNING THE RECEIVING LAWYER'S ACTIONS

A. The ABA Opinion

B. Criticism of the ABA Opinion

C. Selected State Opinions

IV. PHILOSOPHICAL JUSTIFICATIONS

A. Pragmatism

B. Distributive Justice

V. PROPOSED GUIDELINE FOR ALASKA

A. The Underlying Rule of Waiver

B. Proposed Guideline for Alaska

VI. CONCLUSION

FOOTNOTES

This Note addresses the ethical and attorney-client privilege issues that arise when a confidential document is inadvertently disclosed by one attorney to another. The Author examines the three most common approaches taken by courts in determining whether the attorney-client privilege has been waived in inadvertent disclosure situations, considers the positions taken by the American Bar Association and various state ethics opinions, and examines current Alaska law regarding waiver and professional ethics. The Author concludes by recommending that Alaska take the position that inadvertent disclosure does not waive the attorney-client privilege in most circumstances. Accordingly, the Author proposes that Alaska adopt a non-binding professional guideline stating that lawyers faced with such a situation should refrain from using the inadvertently disclosed document, notify the adversary of the mistake, and follow the adversary's instructions regarding what to do with the document.

I. INTRODUCTION

In today's world of technology and increased efficiency, the demands of a fast-paced environment can take their toll. One click of the mouse, and the email is sent; one push of the button, and the [*pg 462] fax is sent; one overlooked document in a box, and it is inadvertently produced. Opportunities for efficiency in legal representation are increasing, but along with them comes the danger of inadvertently disclosing privileged documents, and possibly even inadvertently waiving the attorney-client privilege. Currently, there is no rule in Alaska governing whether inadvertent disclosure waives the attorney-client privilege, or how opposing counsel should handle misdirected documents.

This Note first examines the three most prevalent ways of determining whether the attorney-client privilege has been waived as a result of inadvertent disclosure. ^[1] Second, it looks at how these waiver approaches inform the actions of the receiving attorney by comparing the position taken by the American Bar Association (ABA) and some representative state opinions. Next, the Note examines potential philosophical arguments that may favor one approach over another and discusses current Alaska law regarding waiver and professional ethics. The Note concludes by suggesting that Alaska take the position that inadvertent disclosure does not waive the attorney-client privilege in most circumstances and adopt a professional guideline based on considerations of ethics and professionalism.

An attorney's behavior is governed by the state's rules of professional responsibility, while the rules of evidence govern the attorney-client privilege and its waiver. ^[2] In other words, the rules of evidence govern what may be admitted into evidence; the rules of professional conduct impose discipline for negligent or reckless behavior on the part of lawyers. In general, violations of privilege rules do not prohibit derivative use of the information. ^[3] For example, a lawyer who learns certain facts from inadvertently disclosed privileged material may make derivative use of those facts at trial, even if the attorney-client privilege has not been waived. A rule of ethics may ask the lawyer to "forget" what she read, with an added threat of sanctions if she does not.

While the rules of evidence and professional responsibility are separate, they have an effect on one another. The way the court rules on matters of inadvertent disclosure of privileged material under the rules of evidence influences whether the attorney can be sanctioned under the professional rules of conduct for breach of confidentiality ^[4] or for unfairness to opposing parties and counsel. ^[5] [*pg 463] Furthermore, some of the justifications for the inadvertent disclosure rules rest upon notions of professionalism that are outlined in the rules of professional responsibility. So, while the rules of evidence may allow the admission of material that would otherwise be protected by the attorney-client privilege, any discussion involving the use by attorneys or courts of that privileged material necessarily involves reference to attorney behavior and what the profession expects from attorneys when they are dealing with privileged material. Thus, the test that Alaska adopts to govern inadvertent disclosure should be influenced by considerations of confidentiality and zealous representation, which are governed by the Alaska Rules of Professional Conduct.

II. THREE COMMON WAIVER APPROACHES TO INADVERTENT DISCLOSURE

There are three basic approaches to inadvertent disclosure of otherwise privileged documents. ^[6] The first is a strict responsibility approach, where any disclosure constitutes a waiver of the attorney-client privilege. ^[7] The second is the no waiver approach, whereby the client's intent to waive the attorney-client privilege governs absolutely, leading to the result that no inadvertent disclosure can result in waiver since inadvertent disclosures are, by definition, unintended. ^[8] The third is a balancing approach that examines the facts surrounding the disclosure. ^[9] Each of the three approaches will be examined in light of the goals of ease of application, professionalism, fairness to the parties, respect for confidentiality and the attorney-client privilege, and respect for a lawyer's obligation to zealously represent his or her client. As noted above, although these goals do not decide the admissibility of evidence, the opinions behind them (which arise out of the rules of professional conduct) help determine what evidentiary rule of inadver- [*pg 464] tent disclosure and waiver of the attorney-client privilege should be adopted. For purposes of this Note, it will be assumed that the document is privileged on its face -- that is, there is a cover sheet naming the sender and intended recipient, as well as a notice of confidentiality and a request to immediately return the document to the sender if it has been mistakenly sent.

A. The Strict Responsibility Approach

Under the strict responsibility approach, as set out by Dean Wigmore ^[10] and in a number of federal ^[11] and state opinions, ^[12] inadvertent disclosure of a privileged document automatically waives the attorney-client privilege. ^[13] Under this approach, disclosure itself is deemed evidence of the client's intent not to keep the information privileged. ^[14] Because attorneys have implied authority to disclose confidential information in order to carry out their duties in representing clients, if a document is disclosed, regardless of whether it is stamped confidential, the client implicitly gave the attorney authority to disclose it, and the client cannot then object if the document was inadvertently disclosed. ^[15] Furthermore, opposing counsel may use the document derivatively to obtain leads to other previously unknown sources and may also use the document itself as evidence.

The strict responsibility approach certainly has the benefit of ease of application. There is no need for a lawyer or judge to exercise moral discretion regarding what to do if a document is missent as the disclosure itself is deemed to evidence a lack of intent to keep the document confidential. ^[16] Because the privilege is waived, [*pg 465] receiving counsel can (and in the view of some, should) ^[17] use the document. There is nothing for the judge to decide, other than the common questions of relevance and admissibility. ^[18] Under this approach, the document itself can be admitted into evidence as long as it is relevant. The presence of a cover sheet claiming confidentiality is ineffective because the only inquiry is whether a disclosure took place, regardless of circumstances or intent. ^[19]

Professionalism, under the strict responsibility approach, centers on tight control over the litigation by the lawyer, and relinquishment of a client's right if there is negligence in handling privileged documents. The lawyer's duty is first and foremost to her client, and professionalism would mandate doing everything within the rules to further the interests of the client. Generally, the professional lawyer does not have a duty to protect her adversary from her own mistakes. In International Digital Systems Corp. v. Digital Equipment Corp., ^[20] the court reasoned that the strict liability approach "would probably do more than anything else to instill in attorneys the need for effective precautions against such...