Legal Definitions - lenient test

The lenient test is a legal standard used to determine whether the confidential protection of the attorney-client privilege has been lost, or "waived," when privileged information is accidentally disclosed. Under this test, the attorney-client privilege is considered waived only if the disclosure was made knowingly or intentionally. An accidental or inadvertent disclosure, without intent to reveal the confidential information, generally does not result in the loss of the privilege. This approach prioritizes the protection of confidential communications between clients and their lawyers, recognizing that human error can occur.

Here are some examples illustrating the lenient test:

• Emailing the Wrong Recipient: A lawyer is preparing for a complex business dispute and drafts a highly confidential memo outlining their client's negotiation strategy. They intend to email this memo to their client, but due to a typo in the email address, they accidentally send it to the opposing counsel instead. Upon realizing the error, the lawyer immediately contacts the opposing counsel to retrieve the email.

  How this illustrates the term: Under the lenient test, the attorney-client privilege for that memo would likely remain intact. The lawyer did not *intend* to share the strategy with the opposing side; the disclosure was purely accidental. Therefore, the privilege is not waived, and the opposing counsel cannot use the memo against the client.

• Inadvertent Document Production: During the "discovery" phase of a lawsuit, a large corporation is required to produce thousands of documents to the opposing party. A paralegal, while reviewing and organizing these documents, inadvertently includes a single email chain between the company's CEO and its in-house legal counsel discussing sensitive legal advice regarding a potential merger. This email was not intended for disclosure.

  How this illustrates the term: Because the inclusion of the privileged email was an oversight and not a deliberate decision to disclose it, the lenient test would likely prevent the waiver of the attorney-client privilege. The corporation can assert the privilege over that email, and the opposing party would typically be required to return or destroy it and refrain from using its contents.

• Public Viewing of Confidential Notes: A client meets with their attorney to discuss a personal injury claim. During their meeting at a busy coffee shop, the client takes detailed notes based on the attorney's advice. After the meeting, the client accidentally leaves their notebook containing these privileged notes on the table. Another patron briefly glances at the open notebook before the client realizes their mistake and quickly retrieves it.

  How this illustrates the term: Even though a third party briefly saw the privileged information, the client did not *intend* to disclose it. The act of leaving the notebook was inadvertent. Applying the lenient test, the attorney-client privilege over those notes would not be considered waived because there was no knowing or intentional disclosure by the client.