What Happens if an Attorney-Client Privileged Communication is Inadvertently Disclosed to the Opposing Counsel or Party?
The attorney-client privilege protects from disclosure any communication between a lawyer and the client that are made in confidence for the purpose of giving or obtaining legal advice. Email and mobile devices have made these communications exponentially more efficient by allowing clients and lawyers to type or text as opposed to speaking in person or by telephone. The ease of typing or clicking, however, often leads to the inadvertent disclosure of privileged communications and a waiver of the privilege. For example, an attorney sends an email to opposing counsel, and wishing to keep the client informed, “ccs” or “bccs” the client. The client then replies with a comment or question intended for the attorney’s eyes only, but instead of hitting “reply” hits “reply all.” In similar fashion, the client sends an email to the opposing party, and copies his or her own attorney, wishing for the adversary to know that counsel is involved. The attorney then responds to the client but mistakenly hits “reply all” and reveals a privileged communication to the adverse party.
Disclosing an otherwise privileged communication, even inadvertently, could lead to a waiver of the attorney-client privilege. The side making the inadvertent disclosure can demand that the receiving side return or destroy the inadvertently disclosed communication, but if the opponent refuses, an expensive motion is required, and winning is far from a slam dunk. Even if the motion is successful, the “cat is out the bag” and you cannot erase what the other side learned. Cases like this pop up all the time, yet it is still common for counsel or the party to copy each other on a communication with an adversary. It is easy to prevent this situation from occurring: if you are an attorney, do not copy your client on any email communication with opposing counsel; if you are a party, do not copy your attorney on a communication with the opposing party. Either copy yourself on the email and then forward it in confidence from your inbox, or after sending the email go into your “sent items” folder and forward it from there. The extra step takes only a couple seconds, but the seconds will save time, money and embarrassment.
– By David Mack