Consider, for example, a client consulting an attorney for advice with respect to an employment issue, such as a potential grievance or claim against the employer. Clearly, a letter directed to the client and transmitted via fax to the client's place of employment risks the disclosure of information which, if intercepted by the employer, could give rise to adverse action against the client in the workplace. In light of the duty to maintain client confidences and the goal of maintaining the attorney client and work product privileges, it is good practice to discuss the use of fax machines with your clients at an initial stage of representation. If the client is agreeable to the use of facsimile transmission for communications directed to him or her, the attorney must nonetheless be cautious if any material to be transmitted contains sensitive information. In such cases, the issue arises as to whether such information retains its privileged status or whether the privilege has been waived as a result of the disclosure, albeit unintended.
Jurisdictions are mixed as to whether waiver has occurred.
Many attorneys have faced the ethical dilemma of what to do about confidential client information about an adverse party received inadvertently. A misaddressed envelope or misdirected fax with sensitive information about an adverse party has the proclivity to cause ethical heartburn for the attorney who receives it and may benefit by it if used to advance his or her client's interests. As with all thorny issues, there is no one rule on how to handle this dilemma. However, a California state court has ruled that the lawyer-client privilege shields against deliberate intrusion, and not inadvertent disclosure. The Court vacated sanctions which had been imposed upon a law firm for failure to timely disclose innocent receipt of privileged communications.