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Inadvertent Disclosure of Privileged Material: Complex Ethical Issues for the Recipient
Courts typically do not treat an inadvertent disclosure of documents protected by the attorney-client privilege as a waiver. When, however, a lawyer receives documents from the opposition that appear privileged, the issues quickly become complex. Questions arise as to the appropriate response. Unlike challenging a claim of privilege asserted in a privilege log, when the full substance of the communication is revealed through an inadvertent production, there is often a powerful incentive to challenge the applicability or scope of the privilege.
Simultaneously at work are several competing principles, policies and rules. On one hand, privileged information is often highly relevant. Arguably, fairness requires that a fact-finder consider all relevant evidence, especially if our legal system aims to uncover truth. Moreover, lawyers may legitimately view their duty of zealous advocacy as requiring that they argue waiver or challenge the existence or scope of the privilege.
On the other hand, our legal system depends upon litigants being able to communicate freely with their chosen counsel. Attorneys must be free to investigate favorable, as well as unfavorable, aspects of their cases. As a matter of policy, the rule is that attorney-client communications are protected from compelled disclosure. Since a lawyer's initial response to receipt of an opposing party's privileged communications potentially can result in disqualification, it is imperative that trial lawyers understand the issues involved when there is an inadvertent disclosure of privileged information and follow how the courts are shaping the rules that balance these competing principles and policies. Currently under review by the California Supreme Court is Rico v. Mitsubishi Motors, a product liability case that squarely addresses these issues and should provide guidance to the bar.
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