"Whoops" Revisited
LACBA Update, March 2002

By Ira Spiro, member, LACBA Professional Responsibility & Ethics Committee. Spiro practices class action and other litigation, and legal ethics advising with Spiro Moss Barness & Harrison LLP. He is a former member of the State Bar’s Standing Committee on Professional Responsibility and Conduct. The opinions expressed are his own.

State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 1 instructed California attorneys about what to do with apparently privileged documents that mistakenly arrive on the lawyer’s desk. It undoubtedly applies to the lawyer’s computer, too, which prompts this article. The court stated (70 Cal.App.4th at 656-657):

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.

In State Fund, each of the multi-page documents had very obvious privilege and confidentiality warnings on every first page. When State Fund came down, your author suggested in this column (January 2000) that because pages can become separated, best practice for the sending lawyer would be to place atop every page a header or stamp reading "CONFIDENTIAL" or "ATTORNEY-CLIENT PRIVILEGED."

This article focuses on something now as common as lawyer jokes and lawyer TV shows — long confidentiality and privilege notices in lawyers’ emails. Emails can be rather easy to send to the wrong person. But these email notices inevitably appear at the end of the email. The main point here is simple — The notice should be at the beginning of the email, not the end, to take full advantage of the State Fund case. After all, the court did say "the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged." It would be difficult for a receiving lawyer to argue that privilege could not be ascertained before he or she read the text if the text is preceded by a privilege notice.

Difficult, but not impossible. Why? Because these notices often aren’t prominent, are in small type and bury the confidentiality message in lots of verbiage. It’s a commonplace belief that people often simply don’t read these notices. That’s what a receiving lawyer might well say if he or she read the whole email in a State Fund situation and the notice was like the usual one.

Another helpful practice would be to place confidentiality notices only on emails that are confidential. Often because of automatic programming, confidentiality and privilege notices appear on every email from some lawyers and law firms. If readers get used to seeing them on every email, confidential or not, the notices will take on the "cry wolf" quality — people will ignore them no matter how big they are, possibly with justification.

Finally, remember that a California lawyer’s duty of confidentiality under Busn. and Prof. Code § 6068(e) is "To maintain inviolate the confidence, and...the secrets, of his or her client," and the courts have held that this extends well beyond the attorney-client privilege.

1 The case should be called "Whoops II", "Whoops I" being the unrelated case involving the Washington Public Power Supply System securities disaster of many years ago.