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New Insights on Waiver and the Inadvertent Disclosure of Privileged Materials: Attorney Responsibility as the Governing Precept

NCJ Number
Florida Law Review Volume: 47 Issue: 2 Dated: (April 1995) Pages: 159-204
A Rogers
Date Published
46 pages
This article focuses on the attorney's legal and ethical responsibilities to the client in protecting confidential communications and analyzes the three tests of waiver of attorney-client privilege the courts use in terms of their impact on promoting attorney responsibility and addressing inadvertent attorney disclosure of confidential client communications.
Part One describes the current case law that governs inadvertent disclosure of confidential client materials. It also describes the American Bar Association's (ABA's) first formal ethical opinion on inadvertently disclosed information; this apparently advocates a variation of the subjective-intent test by creating a presumption against waiver that must be overcome by the receiving attorney. The opinion takes this position by emphasizing the forwarding attorney's property rights in the documents. Part Two discusses the attorney-client privilege and its analytic counterpart, the ethical duty of maintaining confidentiality; identifies the goals of each and the tension that has developed between them; and discusses how they may be reconciled. Part Three analyzes each test from the perspective of the attorney's responsibility and concludes that the reasonable- precautions test best serves the client's interests and, therefore, has systemic benefits by properly forcing the attorney to bear the risks of inadvertent disclosure. It reconciles the ABA opinion with this conclusion by making two suggestions. First, to the extent that one views the ABA opinion as adopting the subjective-intent test, the opinion should be limited to its facts -- the instance of a single, errant disclosure -- rather than applying it to the more common occurrence of the inadvertent disclosure occurring within a complex litigation with massive document productions. Second, this article shows that the ABA opinion, with its emphasis on property rights, endorses a reasonable-precautions test. 266 footnotes