On Legal Ethics

You arrive back at your office after completing several days' worth of depositions. Before heading home, you stop to grab the "confidential" file to take with you in order to make some final notes while the facts are still fresh in your mind.

When you locate the folder on your desk, to your horror, it is empty.

In your mind you immediately visualize the disaster zone of the deposition room where you spent the last several days, with paperwork scattered everywhere. "Oh no," you think, heart racing. Is it possible you accidentally left it behind?

Inadvertent disclosure is a significant issue on the front burner of ethics law.

Modern law practice involves volumes of paperwork and increased reliance on e-mail and other "quick" methods of transmitting information, and both haste and human error create plenty of opportunities for inadvertent disclosure.

Once one side inadvertently receives a "nugget" from the opposing party, the battle is on. What is the ethical responsibility of the recipient? Do they have to notify their opponent? How much can they read? Do they have to return the document? Can they copy it first? And what in the world are they supposed to do with the information they have already seen, particularly if it could lead to a revamping of their litigation strategy?

In examining this difficult issue, this article series will discuss the California Rules of Professional Conduct, the ABA Model Rules of Professional Conduct and applicable case law.

Is the material privileged?

In California, one of the first questions asked when faced with the issue of inadvertently produced material, is whether or not it was privileged. (In working through issues of inadvertent disclosure, this article series will discuss all aspects of the decision in Rico v. Mitsubishi Motors, (2007) 42 Cal.4th 807, where the California Supreme Court considered what actions are ethically required of a lawyer who inadvertently receives privileged documents.

Part of the Court's analysis includes an initial determination of whether or not the documents at issue are privileged.

The attorney-client privilege is the oldest privilege protecting confidential communications under common law. Upjohn Co. v. United States (1981) 449 U.S. 383, 389 (citing J. Wigmore, Evidence § 2290 (McNaughton rev. 1961)). "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Id. The party claiming the privilege has the burden of proving its application.

United States v. Gann (9th Cir. 1984) 732 F.2d 714, 723 (citing United States v. Landof (9th Cir. 1978) 591 F.2d 36, 38). While the attorney-client privilege protects communications from the client to the attorney, it may not protect the facts underlying the subject matter of the case. See In re Six Grand Jury Witnesses (2d Cir. 1992) 979 F.2d 939, 944.

The attorney-client privilege protects confidential communications from a client to an attorney for the purpose of obtaining legal advice. Fisher v. United States (1975) 425 U.S. 391, 403.

However, the attorney-client privilege only protects communications that were made under circumstances that the client reasonably expects to be in confidence.

California Evidence Code Section 950 defines "lawyer" for purpose of the attorney-client privilege as either a person authorized to practice law, or a person "reasonably believed" by the client to be so authorized.

This is in the spirit of encouraging full disclosure by the client. (Cal Ev Code 950 Law Revision Commission Comment.)

"Confidential communication between client and lawyer" is defined in Section 952 as "information transmitted between a client, and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."

The client is the privilege holder per Section 953, and subject to several regulations enumerated in Section 954, has a privilege to refuse to disclose attorney-client confidential communications.

An attorney cannot assert the privilege in bad faith.

An attorney cannot, however, wrongfully "make" documents protected by the privilege.

In Conn v. Superior Court (1987), 196 Cal.App.3d 774, petitioner Conn left his employment, taking over 10,000 pages of material with him, which he referred to as his "personal files" (196 Cal. App.3d, at 777).

These materials contained internal documents as well as original communications relating to lawsuits against Conn's employer, including two where he was a named defendant; Id. at 778-79.

When the documents were requested to be returned and Conn's attorney claimed certain documents were privileged, the court held that an attorney cannot create "privileged" documents by "making notes on and about documents which he had no right to have in the first place" (Id. at 785).

Tune in next month when we examine ways in which the privilege can be waived or lost, and other factors affecting the initial determination of whether inadvertently disclosed information is protected.