Rules on what’s privileged a moving target
By Diane Karpman
We all know that there is a specific routine to be followed
when information is inadvertently sent to a lawyer – review only as much as
necessary, notify the sender, sequester the information and maybe lodge it with
the court. This is well established in Rico v. Mitsubishi Motors Corp. (2007)
42 Cal. 4th 807. (See also Ethics Byte,
February 2012).
But what about circumstances where you receive information
from a third party or anonymous source, yet you know you are not an intended
recipient? Here, the protocol is not so clear-cut.
All lawyers have certain obligations and duties to respect
the rights of third persons. We are prohibited from obtaining privileged
information. That is the reason you are permitted to read only enough to
realize it’s privileged. Terminating sanctions have been granted for overly
enthusiastic information gathering like Dumpster-diving (Slesinger, Inc., v.
the Walt Disney Company (2007) 66 Cal. Rptr. 3d 268.
The concepts articulated in Rico are replicated in
ABA Model Rule 4.4, which governs a lawyer’s duty to respect the rights of
third persons. However, that rule only prohibits a lawyer from using methods of
obtaining evidence that violate the rights of others. It fails to address
circumstances where the information or documents were not sent inadvertently,
but were misappropriated and sent deliberately to the attorney. This is an
undefined area. About half the states maintain that the result is the same. The
lawyers obtained information they were not entitled to (See COPRAC
Formal Opinion No. 2013-188). In a recent Nevada case, the Supreme Court
maintained this was an issue of first impression and announced a new rule. Merits
Incentives, LLC v. Eight Judicial District Court, Nevada Supreme Court
(2011) 127 Nev., Adv. Op. 63.
Other states and decisions maintain that Model Rule 4.4, by
its very terms, does not apply where a client procured evidence in violation of
another’s rights. This is a constant theme in wrongful termination litigation.
Some opinions maintain that the lawyer may not review the information, which
could be deemed as using improper methods of “obtaining” evidence. As you can
see, the reasoning in this area is very circuitous.
It can get worse and implicate penal codes, engaging in
criminal conduct – things like receiving stolen property or computer crimes
(COPRAC 2013-188 Fn. 3). As is evident, this is an unsettled and constantly
evolving area. Basically, things can go nuclear. Just put your hands in the air
and walk away, unless you want to be forced to withdraw, or suffer some other
less-than-pleasant consequence.
The lesson to be learned is that the risk of
disqualification is an onerous burden. If the lawyer reads the documents, how
do you put the genie back in the bottle? It’s extremely difficult when the
documents are received from an anonymous source, where the lawyer is totally
innocent. Nevertheless, counsel must be exceedingly careful if they want to
stay in the game.
It is ironic that we have so many layers of arcane
regulations regarding confidentially, and yet reports in The Washington Post and The Guardian allege that
there is widespread monitoring of all forms of communications. The information
that government extracts from audio, video, photographs, emails, documents,
phone logs and Internet pages enables analysts to track a person's movements
and contacts over time. According to these reports, everything we do is being
observed.
Last week Lucian Pera, the treasurer of the American Bar
Association, recommended a new app for datasharing.
Sometimes it seems that our great concern for confidentiality is antithetical
to what is going on in social media and all over the world.
Obviously, there is a disconnect here. We are reassuring our
clients about confidentiality, while it is possible that our conversations are
being monitored as they occur.
Legal ethics expert Diane Karpman can be contacted at 310
887-3900 or karpethics@aol.com.