905.03 Lawyer-client privilege.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Definitions. As used in this section:

(a)A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(b)A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(c)A “representative of the lawyer” is one employed to assist the lawyer in the rendition of professional legal services.

(d)A communication is “confidential” if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(2)General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client’s representative and the client’s lawyer or the lawyer’s representative; or between the client’s lawyer and the lawyer’s representative; or by the client or the client’s lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.

(2m)Privilege when client is a fiduciary. When a lawyer represents a client who is serving as a personal representative, trustee, trust protector, directing party, guardian, conservator, guardian ad litem, attorney in fact for financial matters, health care agent, or other fiduciary, the lawyer’s client is the person who is acting as a fiduciary, and not anyone to whom the client owes fiduciary or other duties, and communication between the lawyer and such a client is protected from disclosure to the same extent as if the client was not acting as a fiduciary. The privilege may be claimed by the client, or otherwise as provided in sub.

(3), even against anyone to whom the client owes fiduciary or other duties.

(3)Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer’s authority to do so is presumed in the absence of evidence to the contrary.

(4)Exceptions. There is no privilege under this rule:

(a)Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(b)Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(c)Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the lawyer’s client or by the client to the client’s lawyer; or

(d)Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(e)Joint clients. As to a communication relevant to a matter of common interest between 2 or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

(5)Forfeiture of privilege.

(a)Effect of inadvertent disclosure. A disclosure of a communication covered by the privilege, regardless of where the disclosure occurs, does not operate as a forfeiture if all of the following apply:

1. The disclosure is inadvertent.

2. The holder of the privilege or protection took reasonable steps to prevent disclosure.

3. The holder promptly took reasonable steps to rectify the error, including, if applicable, following the procedures in s. 804.01

(7).

(b)Scope of forfeiture. A disclosure that constitutes a forfeiture under par.

(a)extends to an undisclosed communication only if all of the following apply:

1. The disclosure is not inadvertent.

2. The disclosed and undisclosed communications concern the same subject matter.

3. The disclosed and undisclosed communications ought in fairness to be considered together.

905.03 Note Judicial Council Note, 2012: Sup. Ct. Order No. 12-03 states that “the Judicial Council Notes to Wis. Stat. § 804.01

(2)(c), 804.01 (7), 805.07

(2)(d), and 905.03

(5)are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

905.03 Note Attorneys and those who work with them owe clients and their confidences the utmost respect. Preserving confidences is one of the profession’s highest duties. Arguably, strict rules about the consequences of disclosing confidences, even inadvertently, may serve to promote greater care in dealing with privileged information. However, precaution comes at a price. In the digital era, when information is stored, exchanged and produced in considerably greater volumes and in different formats than in earlier eras, thorough preproduction privilege review often can be prohibitively expensive. Most clients seek a balanced approach.

905.03 Note The various approaches available are discussed in the Advisory Committee Note and in Harold Sampson Children’s Trust v. Linda Gale Sampson 1979 Trust, 2004 WI 57 , ¶¶28-32, nn.15-17, 271 Wis. 2d 610 . Sub.

(5)represents an “intermediate” or “middle ground” approach, which is also an approach taken in a majority of jurisdictions. Clients and lawyers are free to negotiate more stringent precautions when circumstances warrant.

905.03 Note Sub.

(5)is not intended to have the effect of overruling any holding in Sampson. Sampson holds that a lawyer’s deliberate disclosure, without the consent or knowledge of the client, does not waive the lawyer-client privilege. Neither subpart of sub.

(5)alters this rule. Sub. (5)(a) shields certain inadvertent disclosures but does not disturb existing law regarding deliberate disclosures. Deliberate disclosures might come into play under sub. (5)(b), which provides that, when a disclosure is not inadvertent, a privilege forfeiture under sub. (5)(a) may extend to undisclosed communications and information as well. However, such an extension ensues only when fairness warrants. Fairness does not warrant the surrender of additional privileged communications and information if the initial disclosure is neutralized by the Sampson rule.

905.03 Note In judging whether the holder of the privilege or protection took reasonable steps to prevent disclosure or to rectify the error, it is appropriate to consider the non-dispositive factors discussed in the Advisory Committee Note:

(1)the reasonableness of precautions taken,

(2)the time taken to rectify the error,

(3)the scope of discovery,

(4)the extent of disclosure,

(5)the number of documents to be reviewed,

(6)the time constraints for production,

(7)whether reliable software tools were used to screen documents before production,

(8)whether an efficient records management system was in place before litigation; and

(9)any overriding issue of fairness.

905.03 Note Measuring the time taken to rectify an inadvertent disclosure should commence when the producing party first learns, or, with reasonable care, should have learned that a disclosure of protected information was made, rather than when the documents were produced. This standard encourages respect for the privilege without greatly increasing the cost of protecting the privilege.

905.03 Note In judging the fourth factor, which requires a court to determine the quantity of inadvertently produced documents, it is appropriate to consider, among other things, the number of documents produced and the percentage of privileged documents produced compared to the total production.

905.03 Note In assessing whether the software tools used to screen documents before production were reliable, it is appropriate, given current technology, to consider whether the producing party designed a search that would distinguish privileged documents from others to be produced and conducted assurance testing before production through methods commonly available and accepted at the time of the review and production.

905.03 Note Sub.

(5)employs a distinction drawn lately between the terms “waiver” and “forfeiture.” See State v. Ndina, 2009 WI 21 , ¶¶28-31, 315 Wis. 2d 653 .

905.03 Note Out of respect for principles of federalism and comity with other jurisdictions, sub.

(5)does not conclusively resolve whether privileged communications inadvertently disclosed in proceedings in other jurisdictions may be used in Wisconsin proceedings; nor whether privileged communications inadvertently disclosed in Wisconsin proceedings may be used in proceedings in other jurisdictions. Sub.

(5)states that it applies “regardless of where the disclosure occurs,” but to the extent that the law of another jurisdiction controls the question, it is not trumped by sub. (5). The prospect for actual conflicts is minimized because sub.

(5)is the same or similar to the rule applied in the majority of jurisdictions that have addressed this issue. If conflicts do arise, for example, because a rule dictates that a disclosure in a jurisdiction other than Wisconsin should be treated as a forfeiture in Wisconsin, or that a disclosure in Wisconsin should be treated as a forfeiture in a jurisdiction other than Wisconsin, a court should consider a choice-of-law analysis. See Beloit Liquidating Trust v. Grade, 2004 WI 39 , ¶¶24-25, 270 Wis. 2d 356 .

905.03 Note The language of sub.

(5)also differs from the language of Rule 502 in a way that should not be considered material. Sub.

(5)applies to a privileged “communication.” Rule 502 applies to a privileged “communication or information.” The reason for the difference is that sub.

(5)is grafted onto sub. (2), which states the general rule regarding the lawyer-client privilege in terms of “communications” between lawyers and clients, not “communications and information.” Sub.

(5)follows suit. This different language is not intended to alter the scope of the lawyer-client privilege or to provide any less protection against inadvertent disclosure of privileged information than is provided by Rule 502.

905.03 Note Sub.

(5)is modeled on subsections

(a)and

(b)of Fed. R. Evid. 502. The following excerpts from the Committee Note of the federal Advisory Committee on Evidence Rules (Revised 11/28/2007) and the Statement of Congressional Intent regarding Rule 502 are instructive, though not binding, in understanding the scope and purposes of those portions of Rule 502 that are borrowed here:

905.03 Note

905.03 Note This new [federal] rule has two major purposes: