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

This Article suggests that fostering the development of attorney responsibility should be the central goal in addressing the issues raised by the inadvertent disclosure. Deciding the waiver issue by concentrating on attorney responsibility will help prevent inadvertent disclosures (and resultant waivers) by impressing upon the attorney the need to take care to avoid them. When disclosures inadvertently occur, the amount of precautions the attorney took (albeit unsuccessfully) should determine whether the privilege is waived. Placing the onus of precautions against inadvertent disclosure on the attorney is not only beneficial to the client, but also aids the profession, and the overall administration of justice. These systemic goals underlie the doctrines of privilege and waiver. American courts use three different tests to evaluate whether inadvertent disclosure waives the attorney-client privilege. All three tests use intent as the basis of a waiver, but each uses a different measurement of intent. The traditional test focuses solely on the act of disclosure, deeming it representative of the client\u27s intent to waive his privilege. The subjective intent test is premised on the client\u27s actual desire to waive the privilege; it therefore holds that an inadvertent disclosure never amounts to a waiver. The reasonable precautions test measures intent to waive by the precautions taken to prevent inadvertent disclosure. This Article focuses on the attorney\u27s legal and ethical responsibilities to the client and analyzes the three tests of waiver the courts use in terms of their impact on promoting attorney responsibility. Part One describes the current case law governing inadvertent disclosure. It also describes the American Bar Association\u27s (ABA) first formal ethical opinion on inadvertently disclosed information that appears to advocate 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 stressing the forwarding attorney\u27s 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 how they may be reconciled. Part Three analyzes each test from an attorney-responsibility perspective and concludes that the reasonable-precautions test best serves the client\u27s 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 far more common occurrence of the inadvertent disclosures taking place within a complex litigation with massive document productions. Second, the Article demonstrates that the ABA opinion, with its emphasis on property rights, in fact, endorses a reasonable precautions test