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Attorney-client Communications, § 905.03 – Waiver by Counsel’s Voluntary but Mistaken Disclosure

Sampson v. Sampson, 2004 WI 57, reversing 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831

Issue: “¶2 The question before this court is whether a lawyer’s voluntary production of documents in response to opposing counsel’s discovery request constitutes a waiver of the attorney-client privilege under Wis. Stat. § (Rule) 905.11 when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client.”

Holding:

¶4 We agree with the circuit court. We conclude that a lawyer, without the consent or knowledge of a client, cannot waive the attorney-client privilege by voluntarily producing privileged documents (which the attorney does not recognize as privileged) to an opposing attorney in response to a discovery request. We hold that only the client can waive the attorney-client privilege under Wis. Stat. § (Rule) 905.11 regarding attorney-client privileged documents.

¶32 First, according to the text of Wis. Stat. §§ (Rules) 905.03(2) and (3) and 905.11, the client holds and controls the attorney-client privilege and only the client can waive it.

¶33 Second, according to Wisconsin case law interpreting Wis. Stat. §§ 905.03 and 905.11, the client, not the attorney, must waive the privilege….

¶36 Third, although we acknowledge that under agency law, ordinarily a litigant is bound by the acts of counsel during the representation, the court of appeals’ reliance on the agency theory and, for example, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), is misplaced here….

¶40 One reason we applied the agency doctrine in Johnson was that the agency doctrine promoted the functioning of the justice system. The court-ordered dismissal in Johnson would conduct harmful to an adversary and the justice system. In the present case, the clients are already motivated to prevent release of attorney-client privileged documents, and protecting the attorney-client privilege promotes the functioning of the justice system.

¶42 The purpose of the attorney-client privilege is to promote “full and frank communication” between client and attorney. Full and frank communication is in turn promoted by endowing the communication with confidentiality.

¶48 We acknowledge that the information obtained from the documents before the plaintiffs made any objection to the disclosure cannot easily be erased from the minds of defense counsel or the defendants with whom the documents were shared. The defendants argue that it is not reasonable or practical to try to “unring the bell.” But a return of the documents and the circuit court’s prohibition of their use is the only remedy available in this proceeding.

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