Attorney-client privilege survives disclosure

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“The client is the holder of the privilege and … only the client may waive the privilege.” Chief Justice Shirley S. Abrahamson Wisconsin Supreme Court

An attorney’s voluntary production of documents pursuant to a discovery request does not waive the attorney-client privilege in those documents, the Wisconsin Supreme Court held on May 25.

In doing so, the court reversed a published decision of the Wiscon-sin Court of Appeals, Harold Sampson Children’s Trust v. Linda Gale Sampson 1979 Trust, 2003 WI App 141, 265 Wis.2d 803, 667 N.W.2d 831.

Attorney Robert L. Elliott was retained by Beth Bauer and other family members who were plaintiffs in an intrafamily dispute. Bauer prepared various documents for Elliott’s use, explaining her view of the transactions at issue, disclosing her thoughts and strategy for the case, and identifying supporting evidence.

Believing the documents were not privileged, Elliott disclosed them in response to discovery requests.

Elliott was subsequently replaced as counsel by Cook & Franke, S.C. The new counsel determined that the documents were privileged, and requested their return. The defendants refused, asserting that the privilege had been waived.

Milwaukee County Circuit Court Judge Dominic S. Amato ordered an evidentiary hearing, and referred the dispute to a referee, Theodore J. Hodan, who concluded that the plaintiffs had waived the privilege.

Hodan found that Bauer did not agree to turning over the documents, but did give Elliott authority to respond to discovery requests. Hodan further found that release of the documents was not an inadvertent mistake, but the result of Elliott’s conclusion that the documents were not privileged.

Amato adopted the findings of fact, but disagreed with the legal conclusion, holding, “Elliott could not waive the Plaintiffs’ attorney/client privilege,” as to the documents because, “the law in Wisconsin is only the client can waive attorney/client communications.”

The court of appeals accepted interlocutory review, and reversed in a decision written by Judge Ralph Adam Fine, and joined by Judge Paul Lundsten. Judge Ted Wedemeyer dissented.

The Supreme Court accepted review, and reversed the court of appeals in a unanimous decision by Chief Justice Shirley S. Abrahamson. Justice Diane S. Sykes did not participate.

Four Rules

The court found that four rules govern the issue.

Rule 905.03(1)(d) defines a confidential communication as one that is “not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Thus, the court found the documents confidential.

Rule 905.03(2) codifies the attorney-client privilege, stating that a client “has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” From this rule, the court found that it is explicit that the privilege belongs to the client.

The court cited extensive case law for that same conclusion: Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, par. 33, 251 Wis.2d 68, 640 N.W.2d 788; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 605, 150 N.W.2d 387 (1967); Borgwardt v. Redlin, 196 Wis.2d 342, 355, 538 N.W.2d 581 (Ct.App, 1995); and Swan Sales Corp. v. Jos. Schlitz Brewing Co., 126 Wis. 2d 16, 31-32, 374 N.W.2d 640 (Ct. App. 1985).

The third provision, Rule 905.03(3), reinforces that the privilege belongs to the client by stating that the client may claim the privilege personally or by, among others, the attorney at the time of the communication.

Finally, Rule 905.11, governs waiver of privileges, stating that the attorney-client privilege is waived when the “holder” of the privileged documents “voluntarily discloses or consents to disclosure.”

Application

The court agreed with the lower courts and referee that the disclosure was “voluntary,” within the meaning of Rule 905.11, rather than “inadvertent.”

Nevertheless, the court held that the attorney’s voluntary disclosure did not waive the privilege. The court stated, “We agree with the circuit court that the client is the holder of the privilege and that under the circumstances of the present case only the client may waive the privilege. We reach this conclusion for several reasons.”

First, the court found that, pursuant to the text of Rules 905.03(2) and (3), and 905.11, the client is the “holder” of the privilege, and only the client can waive it.

Second, the case law cited above has consistently interpreted Rules 905.03 and 905.11 to provide that only the client, and not the attorney, can waive the privilege.

The court acknowledged that these prior cases arose from very different fact situations in that the privilege was properly asserted. Nevertheless, as the court held in Dudek, an attorney “may not waive any objections to discovery which are based upon the attorney-client privilege. Only the client can waive these objections.”

Dudek, 34 Wis.2d at 605.

Although not essential to the ultimate holdings in those cases, the court found those statements accurate nonetheless.

Third, the court found that, although a litigant is ordinarily bound by the acts of counsel, pursuant to agency law, that law is not applicable in this situation.

The court distinguished the case of Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), in which the court imputed bad conduct on the part of the attorney to the client, and upheld dismissal as a sanction.

The court stated, “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 motivate clients to police attorneys and would discourage 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.”

The court also found that the decision to sanction the client for the attorney’s conduct in Johnson was a discretionary one, and thus, agency principles do not always bind a client by the attorney’s act.

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However, adopting a discretionary standard, such as that applied in Johnson, would not sufficiently protect the privilege, because it would be unpredictable. The court reasoned, “A privilege must be predictable to have its intended effect.”

The court rejected the defendants’ argument that recognizing the attorney’s waiver in the present case would promote quality legal representation and foster the functioning of the judicial system by holding counsel to a reasonable standard of care regarding voluntary release of attorney-client privileged documents.

Instead, the court found an overriding consideration in the purpose of the privilege — to promote “full and frank communication” between client and attorney — and found that full and frank communication is promoted by confidentiality.

The court stated, “The defendants make a good point, but the judicial system has viewed confidential communications, in the long run, as the best way of arriving at the truth and of promoting the functioning of the justice system.”

The court also acknowledged that it is difficult to “unring the bell,” after the documents have already been disclosed, but nevertheless held that return of the documents and prohibition of their use is the only remedy available.

Accordingly, the court reversed the court of appeals and affirmed the trial court.

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David Ziemer can be reached by email.