This paper will first define the attorney-client privilege, and explore the forms of waiving the attorney-client privilege: voluntary, implied, and inadvertent. Next the discussion will focus on the three schools of federal case law concerning inadvertent waiver, known as the "lenient approach," the "strict approach," and the "middleground approach," with an emphasis on the middle-ground approach as adopted by McCafferty's. The paper then will introduce the possibility of a new "hybrid" approach to inadvertent waiver of the privilege. The discussion will continue with analyzing agency law and its parallels to the attorney-client privilege. Finally this paper will conclude that the hybrid approach is the most appropriate test.
Shawn T. Gaither,
The Attorney-Client Privilege: An Analysis of Involuntary Waiver,
48 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol48/iss2/4