November 2016

Stop Reading If You Think You Have Received Privileged Information

By Frank Tobin

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The attorney-client privilege and work product doctrine are important components of our practice. The attorney-client privilege encourages clients to be candid with their attorneys. This is essential to effective representation. The attorney work product doctrine allows attorneys to effectively and privately prepare their cases thoroughly, and investigate both the favorable and unfavorable aspects. It also prevents attorneys from taking undue advantage of their adversaries’ industry and efforts.

As important as these privileges are, however, they can be waived. Evidence Code § 912 (“§ 912”), subdivision (a) provides that a privilege “… is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.”

However, what if privileged information is inadvertently disclosed? Is there a waiver? What should one do if they believe they have received inadvertently disclosed privileged information? Several cases provide helpful guidance on this topic.

One such case is State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644. State Comp. illustrates the importance which the attorney-client privilege holds in California jurisprudence. In State Comp., a discovery production resulted in the inadvertent disclosure of privileged documents. The receiving attorney refused to return them, contending the production had waived the privilege. The court upheld the privilege, despite the inadvertent disclosure, and found no waiver. State Comp. summarized the ethical obligations of an attorney who receives privileged documents due to inadvertence. Those are:

  • Do not examine the materials any more than is necessary to ascertain if the materials are privileged.
  • Immediately notify the sender he or she possesses material that appears to be privileged.

Once that occurs, the parties either work out whether there has been a waiver or go to court. Id. at 656-657.

State Comp. also noted that in certain circumstances “… disqualification might be justified if an attorney inadvertently receives confidential materials and fails to conduct himself or herself in the manner specified above, assuming other factors compel disqualification.” Id. at 657.

The California Supreme Court decision in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 embraced the outcome of State Comp. In Rico, an attorney received documents subject to the work product doctrine through inadvertence. Rico upheld the requirements of State Comp. regarding the receipt of inadvertently-disclosed privileged information. Id. at 815-819. It also applied the State Comp. principles to materials protected from disclosure by the attorney work product doctrine. Id. In addition, Rico disqualified the attorney who received the work product for using the documents. Id. at 820.

Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176 is a recent California Supreme Court case that further addresses this issue. In Ardon, the inadvertent disclosure was in response to a Public Records Act (“PRA”) request. Evidence Code § 912 did not apply. Rather, Government Code § 6254.5 (“§ 6254.5”), which applies to PRA requests, provides the “disclosure” of a public record waives any privilege.

Despite the language of the PRA, Ardon found no reason to treat inadvertent disclosure under the PRA differently than inadvertent disclosure under § 912. Ardon interpreted § 6254.5 the same as § 912, and found there is no waiver under § 6254.5 if the disclosure is inadvertent. 749-752.

An attorney should be very careful to not disclose privileged and/or work product information. However, if an inadvertent disclosure occurs because of the attorney’s conduct, there is no waiver and the disclosed information cannot be used against your client. It should be given back to the disclosing party.

Importantly, counsel should be very mindful of the ethical obligations of an attorney who receives privileged documents or work product due to inadvertence. Although it may seem like reading or even using inadvertently disclosed privileged documents may be advantageous to your client, in reality, it is unethical. It could cause disqualification and have other serious consequences.

The bottom line is that if you receive inadvertently disclosed privileged or work product documents, do not be tempted to read them. Follow the process in State Fund. Otherwise, the consequences could be severe.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**