Inadvertent Disclosure of Privileged Foreign Language Documents
In the absence of English translation of foreign language documents filing mistakes can happen. During multilingual e-Discovery it is conceivable that privileged foreign language documents can be made available to the receiving party. Regardless of whether it is done inadvertently or on purpose, when privileged documents are disclosed during discovery, ethical issues not only rise for the receiving party but also for the disclosing party.
According to the ethics codes of most jurisdictions, a disclosure of privileged documents or information is a violation of the attorney-client privilege, meaning an attorney can face disciplinary action for an unethical breach of the attorney-client privilege.
Unlike the receiving party of the privileged documents, the disclosing attorney does not benefit from the “knowledge requirement”. In other words, attorneys who disclose privileged foreign language documents cannot argue they were unaware of the documents’ privileged nature because the documents were written in a foreign language.
The reason for this is because an attorney also has an ethical duty to zealously represent his client. As stated in a previous legal translation blog entry, this requires an attorney to fully understand all aspects of communicating with a foreign language-speaking client. Thus, the attorney has an ethical obligation to obtain a foreign language translation of all foreign language documents. His or her failure to do this, and the subsequent filing of a privileged document, is therefore a violation of both the attorney-client privilege and the duty for zealous representation.
See D.C. LEO 256 (1995); Maryland LEO 2000-04 (1999); In re Meador, 968 S.W.2d 346, 352 (Tex. 1998); Kondakjian v. Port Authority of New York and New Jersey, 1996 WL 139782 (S.D.N.Y. 1996); Brandt v. FDIC, 212 B.R. 386, 296 (Bankr. S.D. Fla. 1996).