This is the second of two columns addressing the consequences of a disclosure of communications or information protected by the attorney-client privilege to an opposing party during litigation. It discusses whether an inadvertent disclosure as distinct from an intentional and voluntary disclosure effects a waiver of the privilege with respect to the disclosed matter. The prior column discussed whether a waiver of the privilege as to the disclosed matter also waived the privilege for other matters that while not disclosed are related to those that were, e.g., is a subject matter waiver of the privilege effected? See, Hutter, “Scope of Waiver Effected by Disclosure of Attorney-Client Privileged Matter,” NYLJ, Aug. 2, 2012, p. 3.
As noted in the prior column, New York common law recognizes that the disclosure of privileged matter to an opposing party during litigation, intentional and voluntary or inadvertent, can lead to a waiver of the privilege as to the matter disclosed. Even though the privilege is the client’s to waive, the client’s attorney who authorized or otherwise permitted the disclosure can also effect that waiver.1 Where the disclosure was intentional and voluntary, a waiver is, in fact, effected.2
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