|The inadvertently sent fax or electronic mail is almost inevitable. The
enhanced technology of our era means that mistakes happen faster and that we no longer
have a chance to run down the hall and "stop" the mail.
That small slice of
time in which we could reconsider with measured deliberation has been erased by the
"send" button transmitting e-mail or a fax. The complexity of modern litigation,
with voluminous exhibits and unforgiving discovery deadlines, adds to the problems.
Inadvertent disclosures raise complicated issues about attorney-client or work product
privilege. The lawyer's conduct, by allowing the communication to occur, is arguably
inconsistent with a claim of privilege that requires a degree of safekeeping. Yet, is it
fair to consider a negligent, unconscious and innocent transmission a waiver (the known
relinquishment of an appreciated right), when it really is an inadvertent clerical error?
It is fundamentally unjust to wilfully exploit simple human errors. But, who should be
responsible and bear the burden of the human foible?
Everyone feels sorry
for the hardworking staff person who mistakenly pushes the button. But then again, the
recipient lawyer is passively sitting in his office, staring out the window or watching
the hearings on C-SPAN, when the bombshell communication arrives. Yet, according to an
American Bar Association ethics opinion, it is the recipient lawyers upon whom obligations
ABA Opinion 92-368 mandates that the recipient lawyer refrain from examining the
confidential document and notify the sender of the mistake. The opinion maintains that
this enhances professionalism and is morally the right thing to do. This solution is
supposed to foster a level playing field and protect client confidences. However, it begs
the question. How do you decide it is confidential unless you read it? Does anyone believe
that the generic "confidentiality warning" universally appearing on a fax cover
sheet has any true significance, when we use it for everything from ordering lunch to
making weekend plans?
Once the inadvertent fax-bomb lands, it will set off an explosion of silent unasked
questions. Will the client believe that his advocate is zealous if the fax is sent back
unread, or will the client be dumbstruck with significant concerns regarding the lawyer's
undivided loyalty to his cause? Will the sender believe that the material was not read, or
are the seeds of doubt in the integrity of his case planted forever? Will the recipient
really believe the information was inadvertently sent, or was it a strategic setup,
designed to muck up your case?
As always, the lawyer's paramount obligation is owed to the client. Doing the
professionally "right thing" may very well be to the detriment of your clients'
interests. Although this may be astonishing, it is important to remember clients simply
want to win, be finished with this problem, and go live their lives without lawyers.
Diane Karpman of Los Angeles represents
attorneys at the State Bar and is an expert witness in legal malpractice, conflicts of
interest and partnership dissolutions.