The Accidental Lawyer
Abstract: The inadvertent waiver (IW) doctrine is part of the attorney client privilege but its application lacks uniformity and is thus a major cause for distress for lawyers and clients. The concerns about an IW of the privilege intensify as technology changes the way attorneys and clients interact. Seeking legal advice has become a dangerous activity. This article first shows that courts treat IW as a type of accident without duly attending to the implications of the concept. Drawing on economic analysis of tort law, I identify how the liability regimes and unique harm rules applied by courts to determine whether IW has occurred undermine the objective of the privilege to encourage full and frank exchange of information between attorneys and clients. The second part of this article asserts that imputing inadvertent disclosure of privileged evidence by attorneys to their clients contradicts the prevalent rationale of the attorney client privilege. Imputing IW by attorneys to their clients creates a moral hazard problem. This problem is not sufficiently mitigated by incentives such as the attorney's ethical duties, concerns about malpractice liability or professional reputation. I suggest that the practice should be eliminated or at least minimized.
