Oops! Can I take it back?

• Author: Joffe, Margaret M.
• Position: Ethics and Professionalism

CLIENTS' rights are subject to the same privileges as are the rights of penitents to disclosures made to confessors and the rights of patients to information shared with physicians. In this age of law firms breakups, secretaries and paralegals moving from one firm to another, staff attorneys being hired on a project basis, contract lawyers working for many law firms at the same time, and law firms hiring lawyers for research projects or to draft legal memoranda or appellate briefs, lawyers must look very closely at their obligation to maintain the confidentiality rights of clients.

The advent of computers, cellular phones, fax machines and other electronic means of communication has widened further the possibilities for breaches of confidential client information. What are our obligations of lawyers to ensure the confidentiality of information shared with them by clients? Are lawyers obligated to dispose of their trash in sealed containers with warnings that the information contained therein is confidential and not to be reviewed? Are they obligated to send faxes with notices of confidentiality and warnings that the contents are to be viewed only by the person to whom the fax is addressed?

As more people become involved in providing quality legal services to clients and with the technological advances in communication media and larger cases involving massive discovery, the chances of inadvertent disclosures have increased exponentially. With fax machines in common use, the simple entry of an erroneous telephone number could mean that a confidential communication will be seen by persons who have no right to view it, perhaps even the office of opposing counsel.

What are the obligations of the person who reviews confidential information received in error? For example, if a lawyer places confidential information in an envelope addressed to his own client, and the information is copied to the opposition erroneously, what action is required of the lawyer who received the inadvertent communication? What are the ramifications for the lawyer who erroneously made the disclosure? What are the ramifications for the client whose lawyer's negligence allowed the breach?

Putting the cat back in the bag

The strict approach to inadvertent disclosure puts the burden on the party charged with "keeping the secret" and considers the disclosure a waiver of the attorney-client privilege. The purported rationale is that the privilege should be guarded zealously and...