Wisconsin Supreme Court rules on attorney-client privilege issue.

• Author: Ziemer, David

Byline: David Ziemer

An attorney's voluntary production of documents pursuant to a discovery request does not waive the attorney-client privilege in those documents, the Wisconsin Supreme Court held on May 25.

In doing so, the court reversed a published decision of the Wisconsin Court of Appeals, Harold Sampson Children's Trust v. Linda Gale Sampson 1979 Trust, 2003 WI App 141, 265 Wis.2d 803, 667 N.W.2d 831.

Attorney Robert L. Elliott was retained by Beth Bauer and other family members who were plaintiffs in an intrafamily dispute. Bauer prepared various documents for Elliott's use, explaining her view of the transactions at issue, disclosing her thoughts and strategy for the case, and identifying supporting evidence.

Believing the documents were not privileged, Elliott disclosed them in response to discovery requests.

Elliott was subsequently replaced as counsel by Cook & Franke, S.C. The new counsel determined that the documents were privileged, and requested their return. The defendants refused, asserting that the privilege had been waived.

Milwaukee County Circuit Court Judge Dominic S. Amato ordered an evidentiary hearing, and referred the dispute to a referee, Theodore J. Hodan, who concluded that the plaintiffs had waived the privilege.

Hodan found that Bauer did not agree to turning over the documents, but did give Elliott authority to respond to discovery requests. Hodan further found that release of the documents was not an inadvertent mistake, but the result of Elliott's conclusion that the documents were not privileged.

Amato adopted the findings of fact, but disagreed with the legal conclusion, holding, "Elliott could not waive the Plaintiffs' attorney/client privilege," as to the documents because, "the law in Wisconsin is only the client can waive attorney/client communications."

The court of appeals accepted interlocutory review, and reversed in a decision written by Judge Ralph Adam Fine, and joined by Judge Paul Lundsten. Judge Ted Wedemeyer dissented.

The Supreme Court accepted review, and reversed the court of appeals in a unanimous decision by Chief Justice Shirley S. Abrahamson. Justice Diane S. Sykes did not participate.

Four Rules

The court found that four rules govern the issue.

Rule 905.03(1)(d) defines a confidential communication as one that is "not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those...