More than ever, the practice of law involves handling paper. I am not referring to commercial paper. I mean sheets of paper — mountains of it — the product of word processors, e-mail and high-speed photocopy and facsimile machines.

Some of this paper is protected by an attorney-client privilege or is otherwise confidential, and some is not. But the sheer volume alone means one thing: Mistakes are inevitable. Some lawyers will inadvertently produce privileged or confidential materials, and others will receive them.

Obviously, the inadvertent production of protected materials presents problems for the lawyer making the mistake. Confidences are meant to be kept, and the attorney-client privilege belongs to the client and not the lawyer. Accordingly, without the client's consent, the lawyer has no authority to reveal privileged communications, especially to one's adversary.

But the receiving lawyer should understand his or her situation also is fraught with peril. In fact, in some respects the civil liability and professional responsibility implications can be even greater for the receiving lawyer. Why? Simply put, the legal profession is grounded on honor and fairness, and lawyers are expected to act accordingly.

The attorney-client and work product privileges can be waived, and disclosure is one of the classic means to accomplish waiver. But inadvertent disclosure by the lawyer does not necessarily mean waiver. We are all taught waiver involves the intentional relinquishment of a known right. When a lawyer inadvertently discloses a protected communication, there is nothing intentional about it.

So what should a lawyer do who comes into possession of materials appearing on their face to be subject to the attorney-client privilege or otherwise confidential, when the circumstances suggest the materials were not intended for the receiving lawyer? The answer is be fair and be professional.

Approximately five years ago the ABA issued its Formal Opinion 92-368 dealing with this exact problem. The Opinion offers sound guidance for Illinois lawyers when it suggests the receiving lawyer should do three things:

First, do not examine the materials once the inadvertence is discovered. Second, notify the sending lawyer of their receipt. Third, abide by the sending lawyer's instructions as to their disposition.

I can envision circumstances where the receiving lawyer may have reasonable grounds to question the sending lawyer's instructions as to disposition. That is what the courts are for. The receiving lawyer should continue to refrain from viewing the materials beyond what is necessary and should instead offer the materials to the court for in camera inspection and a judicial determination as to their disposition.

The temptation to view privileged or confidential materials undoubtedly is great to some lawyers. After all, once a document is read, it cannot be un-read. Therefore, the situation presents a chance to obtain an advantage. But if that advantage is unfair, there can be serious consequences. Zealous advocacy has its limitations.

Courts are empowered to ensure fairness and can impose sanctions designed to eliminate an unfair advantage. For example, counsel can be disqualified. Evidence can be excluded. In fact, entire claims and defenses can be barred. Thus, what may appear to be an advantage may instead cost both lawyer and client dearly in the end.

What should the sending lawyer do when he or she discovers that privileged or confidential materials inadvertently have been sent to other counsel? First, do not panic. Inadvertence alone rarely presents a licensing problem. And as for civil liability, an action for legal malpractice still requires proof of causation. Therefore, the civil liability problem is likely to be far less severe than might appear at first blush.

The sending lawyer should immediately notify the receiving lawyer of the inadvertent production, ascertain the status of the situation, and provide reasonable instructions to prevent viewing or further viewing and unauthorized use. If receiving counsel refuses to comply with those instructions or has already viewed the material, then one must consider what motion, if any, should be brought to neutralize the advantage. In short, one must rely upon receiving counsel's sense of professional responsibility, and if there is any dispute, bring it before the court as soon as possible.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.