WPS: Accidentally Placing Confidential Communications in the Wrong Hands
LACBA Update, January 2000

By Ira Spiro, member, LACBA Professional Responsibility and Ethics Committee and State Bar Standing Committee on Professional Responsibility and Conduct. Spiro practices with Grebow, Yee & Spiro of Beverly Hills. The views expressed are his own.

You are counsel for plaintiff. One day, you are surprised to find in a mailing from counsel for defendant a memorandum he or she wrote to the client with the intriguing title, "Weaknesses of Defendant’s Case." What do you do? What should counsel for defendant have done to minimize the harm from this inadvertent disclosure?

The first question was answered in State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657, 82 Cal.Rptr.2d 799 (the answer arguably in dicta, but it strongly worded mandatory language):

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she [the lawyer] possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court... We do hold, however, that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.

These are the rules for the receiving lawyer. But what can State Fund teach the lawyer who inadvertently sends the information? That could be any lawyer handling litigation or transactions.

One practice pointer is suggested by State Fund’s "obviously appear" and "clearly appear" language quoted above. In State Fund, each of the multi-page documents bore a title on the first page: "Attorney-Client Communication/Attorney Work Product," and more. "Confidential" was repeatedly printed around the perimeter of each first page, and succeeding pages were numbered. That was enough, possibly a good deal more than enough for the first page.

But pages of a multi-page document can become separated and mistakenly find their way into a document production. It might not become clear to the receiving lawyer that the pages are privileged until the lawyer has read most or all of them, and maybe not even then. But a footer, or better yet, a header atop every page reading, "CONFIDENTIAL" or "ATTORNEY-CLIENT PRIVILEGED" will certainly make it clear at a glance. Lawyers should consider such headers, footers or stamps for every page. There may be reasons not to do so, but at least it should be considered.

It should be considered not only for privileged documents but also for confidential documents that are not privileged. Business and Professions Code § 6068(e) requires lawyers "To maintain inviolate the confidence, and...the secrets, of his or her client." It has been held many times that this command covers confidential information even outside the attorney-client privilege.

Another pointer from State Fund — before sending documents, carefully check all pages for privilege and confidentiality. State Fund determined that the privilege there was not waived in part because the producing lawyers did follow a rigorous checking procedure (70 Cal.App.4th at 653) — They simply made a mistake.

It is impossible for every lawyer to be assured that he or she will never inadvertently send out a privileged document. Even in 1992, before email became so common, ABA Formal Opinion 92-368 commented that this problem will occur with increasing frequency, given complex, multi-party litigation and the ease of pressing the wrong speed dial button on a fax machine. But every lawyer can take steps to protect his or her privileged and confidential documents.