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Ethics Byte

Redefining Inadvertent

By Diane Karpman

Diane KarpmanOn 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 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.