The inadvertently sent fax or electronic mail is almost inevitable. The complexity of modern litigation, with voluminous exhibits and unforgiving discovery deadlines, adds to the problems.
Inadvertent disclosures raise complicated issues about attorney-client or work product privilege.
The lawyer's conduct, by allowing the communication to occur, is arguably inconsistent with a claim of privilege that requires a degree of safekeeping. It is fundamentally unjust to wilfully exploit simple human errors. Everyone feels sorry for the hardworking staff person who mistakenly pushes the button. But then again, the recipient lawyer is passively sitting in his office, staring out the window or watching the hearings on C-SPAN, when the bombshell communication arrives. Yet, according to an American Bar Association ethics opinion, it is the recipient lawyers upon whom obligations are imposed.