Letter From The President Of The Southern California Chapter Of The Association Of Corporate Counsel

2005-05-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Potential loss of confidentiality through inadvertent disclosure of otherwise privileged communications is an increasing problem. As more and more attorneys and clients use email, hand-held and other electronic devices, it becomes more and more difficult to control distribution of privileged communications. With a premature or otherwise unintended click of the "send" button, a message can be sent to anyone located anywhere around the globe.

The majority of the California courts have interpreted existing state law to mean that only an intentional disclosure results in loss of the privilege. Ambiguities in the language of California Evidence Code Section 912, however, leave open the possibility that the privilege may be lost through inadvertent disclosure.

Assembly Bill 1133 would remove the ambiguity by clearly codifying that inadvertent disclosure of an otherwise privileged communication does not waive the privilege. In support of the bill, our chapter sent a letter to the bill's sponsor, California Assemblyman Harmon.

We explained to Assemblyman Harmon that eroding the privilege's protections by allowing inadvertent disclosures to constitute a waiver would stifle otherwise appropriate communications that are critical in assuring the solicitation and provision of proper legal advice and accurate public disclosures.

I would like to thank our advocacy champions Joseph Cracium and Jonathan Block, among others, for spearheading our efforts to address this important issue. In particular, thanks go to the firm of Buchalter, Nemer, Fields & Younger, especially its partners Pete Mack and Peter Bertrand, for their assistance. You can read our letter at ww.acca.com/public/comments/attyclient/socalassembly.pdf.

ACC provides an excellent resource for addressing in-house counsel's concerns about erosion of the attorney-client privilege not only in California, but in other states as well. We welcome in-house counsel in Southern California to join our efforts to preserve the attorney-client privilege and addressing other issues of our collective concern. To learn more about our chapter, visit http://www.acca.com/chapters/socal.php.

Sincerely,

Vincent M. Gonzales