On Legal Ethics

The problem of inadvertent disclosure of private information continues to plague modern lawyers, particularly given the ease of human error in accidentally transmitting private facts to the opposing party in litigation.

This month, we continue our examination of the ethical issues involved in the accidental disclosure of private information. We are looking at issues of work product and related California and Federal rules of civil procedure.

Work product privilege

The landmark case of Rico v. Mitsubishi Motors, (2007) 42 Cal.4th 807, was decided primarily on grounds of work product, as it involved a memo prepared by one of the sides in litigation, discussing case strategy. The issue of work product is thus an important part of any inadvertent disclosure analysis.

California Code of Civil Procedure Section 2018.030, Writings and Written Documentation, states:

(a) A writing that reflects an attorney's impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

This section should be read in connection with Evidence Code Section 915, Disclosure of privileged information or attorney work product in ruling on claim of privilege, which states that:

(a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division or attorney work product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure in order to rule on the claim of privilege; provided, however, that in any hearing conducted pursuant to subdivision (c) of Section 1524 of the Penal Code (regarding issuing a search warrant) in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of the claim other than to require disclosure, the court shall proceed in accordance with subdivision (b).

(b) When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) or under subdivision (b) of Section 2018.030 of the Code of Civil Procedure (attorney work product) and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

Limited crime fraud exception

There is no crime/fraud exception to the attorney work product immunity in California except during an official investigation where a lawyer is suspected of criminal activity.

Notwithstanding Section 2018.040 (restatement of existing work product law), when a lawyer is suspected of knowingly participating in a crime or fraud, there is no protection of work product under this chapter in any official investigation by a law enforcement agency or proceeding or action brought by a public prosecutor in the name of the people of the State of California if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.

Federal Rule of Civil Procedure 26(b)(5)(B), Belated Assertion of Privilege states:

If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (Emphasis added)

In federal courts, Federal Rule of Civil Procedure 26(b)(5)(B) provides a "claw-back" provision for inadvertently disclosed work product protected and attorney-client privileged information. However, the rule does not require the receiving party to notify the producing party of the inadvertent production. Rather, the responsibility remains on the producing party to notify the recipient and demand return of the inadvertently produced material. Once notified, the rule requires that "a party must promptly return, sequester or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved."

Notably, because the Rico case sets forth ethical duties of a California attorney, a California attorney may be well advised to comply with Rico's standard of conduct, regardless of whether he or she is practicing in state or federal courts situated in California. No federal court decisions have yet addressed the issue.

Tune in next month as we continue to explore ethical issues surrounding the problem of inadvertent disclosure.