Privileged Document Accidentally Disclosed
In a commercial arbitration, opposing counsel emails you a bundle of documents. One attachment is a memorandum from the opposing party's in-house counsel to its board analysing the weaknesses of its own case. It is clearly marked privileged and was plainly included by mistake. Your client reads it and is excited: it concedes a key limitation issue. The arbitration rules require parties to cooperate in good faith on document production. Opposing counsel has not noticed the error. The tribunal has not yet held the document-management conference.
1. What must you do on discovering the accidental disclosure?
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You must not review or use the document. On discovering an apparently privileged document disclosed by mistake, the proper course is to stop reading it, notify opposing counsel promptly, and either return or destroy it without retaining copies. You should not take instructions from your client on its contents or use it to shape the case.
This follows from the duty to act honourably and with candour, and from the professional obligation not to take unfair advantage of an obvious error. The arbitration's good-faith cooperation requirement reinforces the point. The document should be sequestered from the working file, and the client should be told that it cannot be used. If there is any doubt whether the privilege claim is valid, the tribunal can be asked to rule, but the document should not be mined in the meantime.
2. Your client insists the document is now fair game because it was sent to you. How do you handle the disagreement, and what if opposing counsel does not respond?
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Explain to the client that receipt does not waive privilege and that using the document could expose the client to costs, an adverse inference, or disciplinary consequences for counsel. The client's commercial interest in the concession does not override the professional obligation. If the client continues to insist, you may need to consider whether you can continue to act, but you should not simply follow the instruction.
If opposing counsel does not respond, escalate: write again, copy the tribunal's registry, and ask the tribunal to give directions at the document-management conference. Preserve the document unread and unopened where possible, and record the steps taken. The goal is to return the parties to the position they would have occupied had the error not occurred.