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Corey v. NH&D, part 2

	[¶15]  On February 4, 1997, Michael Waxman, Susan's attorney, went
to the office of Harrison L. Richardson, the attorney for NH&D, to view
NH&D's file regarding the Corey divorce.  Richardson was not in his office,
but he had told his secretary to photocopy any documents Waxman wished
to have.  Inadvertently placed in the boxes of documents available for
Waxman's review was a memorandum with the phrase "CONFIDENTIAL AND
LEGALLY PRIVILEGED" written at the top of the page.  The memorandum is
a summary of a telephone conference between Richardson and DeTroy, the
attorney who represented Susan in her divorce.  Waxman requested and
received a copy of the document from a firm secretary without the
knowledge of Richardson.  The secretary contacted Waxman later that day to
request the return of the copy of the document.  Waxman refused that
request, believing that he did not have an obligation to return the document
because the attorney-client privilege was waived by the inadvertent
disclosure of the document.  He then informed Richardson, in writing, of his
receipt of the document.
	[¶16]  The Superior Court granted NH&D's motion for a protective
order and required Waxman to return his copy of the memorandum to
Richardson and to make no further use of it.  An appeal of that ruling is now
before us.
	[¶17]  "A party aggrieved by a discovery order 'must show both that
the trial judge committed error in the discovery ruling despite the
considerable discretion vested in the judge . . . and that the discovery order
affected the outcome of the action to his prejudice.'"  Jacques v. Pioneer
Plastics, Inc., 676 A.2d 504, 509 (Me. 1996) (quoting 1 Field, McKusick &
Wroth, Maine Civil Practice § 26.18b at 212 (2d ed. Supp. 1981)).
	[¶18]  The purpose of the attorney-client privilege "is to encourage
clients to make full disclosure to their attorneys," see Fisher v. United
States, 425 U.S. 391, 403 (1976), and "to protect not only the giving of
professional advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and informed advice,"
see Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).  Any rule
regarding inadvertent disclosures must uphold this underlying purpose.
	[¶19]  In ordering the return of the inadvertently disclosed privileged
document, the trial court, adopting the rule first established in Mendenhall
v. Barber-Greene Co., 531 F. Supp. 951 (N.D. Ill. 1982), concluded:
A truly inadvertent disclosure cannot and does not constitute a
waiver of the attorney-client privilege.  The issue for counsel and
the court upon a claim of inadvertent disclosure must be
whether the disclosure was actually inadvertent, that is, whether
there was intent and authority for the disclosure. . . .  If receiving
counsel understands the disclosure to have been inadvertent, no
waiver will have occurred.  Unless receiving counsel has a
reasonable belief that the disclosure was authorized by the client
and intended by the attorney, the receiving attorney should
return the document and make no further use of it.

See id. at 954-55.  We agree with the Superior Court and its adoption of the
common sense rule set out in Mendenhall.  See also Kansas-Nebraska
Natural Gas Co. v. Marathon Oil Co., 109 F.R.D. 12, 21 (D. Neb. 1983);
Connecticut Mut. Life Ins. Co. v. Shields, 18 F.R.D. 448, 451 (S.D.N.Y. 1955). 
Underlying this rule is the notion that the client holds the privilege, and
that only the client, or the client's attorney acting with the client's express
authority, can waive the privilege.  See Succession of Smith v. Kavanaugh,
Pierson & Talley, 513 So.2d 1138, 1143 (La. 1987).  The rule focuses on the
intent of the parties to determine whether the disclosure was indeed
inadvertent.  See Berg Elecs., Inc., v. Molex, Inc., 875 F. Supp. 261, 263
(D. Del. 1995).  The Mendenhall court explained that "if we are serious
about the attorney-client privilege and its relation to the client's welfare, we
should require more than . . . negligence by counsel before the client can be
deemed to have given up the privilege."  Mendenhall, 531 F. Supp. at 955.
	[¶20]  The rule adopted by the Superior Court, which we now adopt, is
consistent with the rule adopted by the American Bar Association's
committee on Ethics and Professional Responsibility:
A lawyer who receives materials that on their face appear to be
subject to the attorney-client privilege or otherwise confidential,
under circumstances where it is clear they were not intended
for the receiving lawyer, should refrain from examining the
materials, notify the sending lawyer and abide the instructions of
the lawyer who sent them.

ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368
(1992); see also ABA Comm. on Ethics and Professional Responsibility,
Formal Op. 94-382 (1994).{6}
	[¶21]  We agree with the Superior Court's rejection of the alternate
approaches followed by other courts.  In one line of cases, an inadvertent
disclosure of a privileged document can amount to a waiver of the privilege if
the client and the client's attorney did not take adequate steps to prevent
the disclosure.  See Gray v. Bicknell, 86 F.3d 1472, 1483-84 (8th Cir. 1996);
see also Hartford Fire Ins. Co. v. Garrey, 109 F.R.D. 323, 331-32
(N.D. Cal. 1985).  The Gray approach has been criticized as creating an
uncertain, unpredictable privilege, dependent on the proof of too many
factors concerning the adequacy of the steps taken to prevent disclosure. 
See Berg Elecs., Inc. v. Molex, Inc., 875 F. Supp. 261, 262-63 (D. Del. 1995). 
Another line of cases concludes that all inadvertent disclosures of
documents constitute a waiver of the privilege because the information is no
longer confidential.  See International Digital Sys. Corp. v. Digital Equip.
Corp., 120 F.R.D. 445, 449-50 (D. Mass. 1988); 8 John Henry Wigmore,
Evidence in Trials at Common Law § 2325(3) (John T. McNaughton ed.,
1961).  Although this approach has been adopted by the United States
District Court for the District of Maine, see Federal Deposit Ins. Corp. v.
Singh, 140 F.R.D. 252, 253 (D. Me. 1992), it takes away from the client the
ability to control when the privilege is waived and discourages
communication between attorneys and clients.  
	[¶22]  The Superior Court was correct in concluding that there was no
waiver of the privilege, and in ordering the return of the document and
prohibiting the disclosure of its contents.
	The entry is:
Order regarding the privileged document is
affirmed; judgment affirmed.

Attorney for plaintiff: Michael J. Waxman, Esq. P O Box 375 Portland, ME 04112-0375 Attorneys for defendants: Harrison L. Richardson, Esq., (orally) John S. Whitman, Esq. Paul R. Johnson, Esq. Richardson, Whitman, Large & Badger, P.C. P O Box 9545 Portland, ME 04112-9545 (for Norman, Hanson & DeTroy) James M. Bowie, Esq., (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112-4630 (for Dawson Smith Purvis & Bassett)
FOOTNOTES******************************** {1} . The court actually valued the dental practice at $37,670. {2} . Dawson, Smith, Purvis & Basset, P.A. joined in the motion for summary judgment. {3} . Rule 7(d)(2) further provides: All material facts set forth in the statement required to be served by the moving party, if supported by appropriate record references, will be deemed to be admitted unless properly controverted by the statement required to be served by the opposing party. M.R. Civ. P. 7(d)(2); see also Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me. 1992). {4} . In Celotex, the Supreme Court was interpreting the requirements of Fed. R. Civ. P. 56(c). See Celotex, 477 U.S. at 322. Our summary judgment rule is almost identical, but with the additional requirements in M.R. Civ. P. 7(d), which make clearer the burden of a party moving for a summary judgment. See M.R. Civ. P. 56. {5} . We have not determined whether the good will of a professional practice may be marital property subject to division on divorce. See Lord v. Lord, 454 A.2d 830, 833 nn.3-4 (Me. 1983). The record does contain evidence concerning the value of the dental practice. Susan's expert gave an opinion that the value of the dental practice was in excess of $600,000. That value, however, is based on the practice as it existed at the end of 1994. At that time the practice consisted of two dentists with offices in South Portland and Waterville. As NH&D points out, that partnership has since dissolved, and at the time of the divorce, John was practicing alone out of the South Portland office. Although it is apparent that Susan's expert would be required to update his opinion as to the current value of John's practice, and that he would be required to convince the fact finder that his testimony was credible, it is clear that the expert was prepared to testify that the good will of a dental practice can have considerable value. {6} . The Maine Professional Ethics Commission of the Board of Overseers of the Bar, in Opinion No. 146, has distinguished between situations involving active participation of the receiving lawyer in the receipt of the documents and those involving the innocent receipt of such documents through opposing counsel's inadvertence, and concluded that the Bar Rules did not prohibit the use of inadvertently disclosed privileged materials. Me. Prof. Ethics Comm'n, Op. No. 146 (Dec. 9, 1994). Back to Part 1. Back to Opinions page.