Redefining Inadvertent
By Diane Karpman
On Jan. 11,
approximately 27,000 California lawyers received a “love letter” from
the State Bar. We were all notified via email that our MCLE compliance was
going to be audited. Many hearts skipped several beats, both mentally and
physically, scrambling to locate those little slips of paper (which seem to
have disappeared) evidencing compliance via various lunch programs months and
years ago.
In less than 30 minutes, the
State Bar sent a corrective email , indicating that the prior email was
"inadvertently" sent. But what an interesting time, and yes, your
whole life can flash before your eyes. And just what does
“inadvertent” mean?
An important new case, Clark
v. Superior Court (2011) 196 Cal. App. 4th 37, discusses what you need to
know about “inadvertent.” This term is so popular in legal circles
that it was applied to information that was intentionally and purposely
supplied by a client to his own lawyer. There was nothing careless or
unintentional about it. In Clark, the lawyer was disqualified pursuant
to principles explained in Rico v. Mitsubishi Motors Corp. (2007) 42
Cal. 4th 807.
The company VeriSigns
eliminated Clark’s position of chief administrative officer and
terminated him. Of course, he sued. (Clark is a lawyer.) Clark, like so many
employees, retained documents, some of which were clearly marked as privileged,
and others which may have been confidential or proprietary. He had executed a
nondisclosure agreement while employed, prohibiting the removal of VeriSigns
confidential or privileged documents. This case is a game changer, because
never have lawyers been disqualified due to a disclosure of confidential
information from their own clients. Suddenly, you need to be careful about
receiving documents from your client, which is inconsistent with prior case
law.
In Fox Searchlight
Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, the lawyer‑client
was encouraged to disclose to his lawyer because:
“In‑house counsel faced with these ethical
questions should not be required to fend for themselves based on their own research
and what they can remember from a State Bar ethics program. Instead, they
should be permitted to seek out independent, candid, professional advice about
their ethical duties under their particular circumstances. Indeed, the
employer’s confidentiality would seem better protected if, early on, in‑house
counsel consults her own attorney about the ethical issues in a wrongful
termination case rather than risk having confidential communications disclosed
inadvertently in the later stages of the litigation.”(fn.53)
In order to render competent
performance, a lawyer must be fully informed about all information regarding a
claim, so as to understand the issues in a robust manner:
“[I]t is essential for
them to have complete knowledge of all potentially confidential information
known to their client and relevant to the litigation.”(Fox Searchlight)
Clark is already presenting problems. Clients often bring
evidence to lawyers so that they can be advised. Is the evidence legal, or is
it illegal? Clients often need a lawyer’s analysis to determine the
proper course of action. As a result of Clark, lawyers must be cautious
in reviewing the information provided by their own clients.
The Clark Court applied the
established protocol that is typically triggered when lawyers receive
inadvertently produced or transmitted information. The procedure is: 1) they
must only read as much as necessary to determine whether it’s privileged;
and 2) they must notify the other side of its receipt. This protocol was
explained in Rico. One of the overarching themes of this area is that a
client should not suffer the loss of privilege because of some inadvertent act
by a secretary or staff in hitting the “reply to all” button, someone
sending an inadvertent facsimile, or sloppy document production. A staff
person’s carelessness should not be imputed to a client.
When lawyers receive a
document that arguably could be privileged, they are permitted to read only a
much as is reasonably necessary to impose that determination. This has always
been a vague standard, because how much is too much? In Clark, the
lawyer was criticized because he excessively reviewed the material over a
period of nine months. So, it appears that some quantifiable standard is
developing. Henceforth, we all need to be careful when our clients
intentionally and voluntarily gives us boxes of documents, or even a few pieces
of paper. The fashionable term “inadvertent” has now, because of Clark, taken on entirely new and different meaning.
The State Bar’s MCLE audit
email was accidental and well within the accepted parameters of being
inadvertent. It was a mistake and notification occurred quickly (whew).
But in Clark, since it was the first case, and the information was
client-provided, imposing the harsh remedy of disqualification may have been
excessive, and it took many lawyers by surprise.
Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com. Karpman is a State Bar Certified Specialist in Legal Malpractice, and is
frequently employed in risk management for law firms, in addition to assisting
in State Bar matters.