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Privilege Analysis

Given the importance of the issue, the likelihood that the Wisconsin Supreme Court will grant review, if petitioned, should be considered very high. The court has not considered waiver since the Dudek case in 1967, and the decision here greatly undermines that decision.

While the court has not directly considered waiver in years, however, a recent decision by the court is noteworthy and much better for illustrative purposes than the case at bar — In the Matter of Disciplinary Proceedings Against O’Neill, 2003 WI 48, 661 N.W.2d 813.

The court in O’Neill did not discuss waiver, rather, it was a disciplinary proceeding based on an attorney’s voluntary, but unauthorized, disclosure of documents and information protected by the privilege, just as in the case at bar.

O’Neill was retained to represent a client in a divorce action. Before the divorce could be filed, however, the client’s wife was murdered. O’Neill turned over documents and revealed conversations protected by the privilege to police without authorization from the client.

The officers used that information in deciding to charge the client with his wife’s murder. However, the prosecutor agreed not to use any evidence protected by the privilege at trial.

The opinion does not state the reason for that decision, but presumably, the reason was that the prosecutor considered it inadmissible (or at least was sufficiently fearful it would be found so as to not risk a conviction’s validity by presenting it).

The question is whether the evidence would be admissible, were the decision in the case at bar to become binding precedent.

In both cases, the attorney’s disclosure is clearly voluntary, even if unauthorized. The rule from the Restatement that, “The attorney-client privilege is waived if the client, the client’s lawyer, or another authorized agent of the client voluntarily discloses the communication in a non-privileged communication,” would be equally applicable to both cases.

However, that portion of the court’s decision discussing agency arguably would not apply. In the case at bar, the client authorized the attorney to comply with discovery demands, even if she didn’t authorize him to release privileged information.

In a criminal case, however, that would not be the situation, as criminal defendants need comply only with very minimal discovery, and it would be a far greater stretch to conclude that the client authorized the attorney’s actions than when an attorney in a civil case reveals confidential documents in complying with a routine discovery demand.

In O’Neill, however, the attorney was not retained for a criminal matter, but a divorce. The attorney was not complying with discovery demands, but a police investigation.

One rule set forth in the majority opinion, in its discussion of agency, is that a lawyer’s act is considered to be that of the client if the third person would reasonably assume that the lawyer is authorized to do the act.

However, if a criminal defense attorney were to say to the prosecutor, “my client told me he is guilty,” it is arguable that a reasonable prosecutor would not believe that the attorney was actually authorized to make that disclosure. Thus, the waiver of the privilege, while voluntary, could not be imputed to the client, and the agency rule would not be satisfied.


Wisconsin Court of Appeals

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Inadvertent disclosure waives privilege

However, suppose the attorney says to the prosecutor, “my client told me he did it, but it was self-defense.” Now, a prosecutor would more reasonably think that the disclosure was authorized. Under the agency principles cited by the majority opinion, the statement might constitute a waiver.

In O’Neill, the informatio
n was not revealed to an opposing attorney, but police investigators. This raises a number of questions. Would a reasonable person assume the attorney was authorized to provide the information to police? On whom is the reasonable person standard based — a reasonable attorney well-versed in professional responsibility rules, or a reasonable layman or reasonable police officer?

Thus, ironically, the decision actually does the exact opposite of what it purports to do. The rule that only the client can waive the privilege would be far simpler to administer, and would comport with clients’ reasonable expectations. The majority rule will more likely be the one that embeds the gears of law in complex evidentiary hearings.

— David Ziemer

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David Ziemer can be reached by email.

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