St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law


Justin C. Roberts

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Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials are privileged, and (2) to better argue to the court that the materials are not privileged. Reading the material should not result in a finding of improper behavior so long as the receiving lawyer: (1) notifies opposing counsel of receipt of the material, and (2) does not use the material until its status is clarified by the court.