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Sometimes you just don’t want to know

By Diane Karpman

Ethics expert Diane Karpman can be reached at karpethics@aol.com.
Karpman

Technology presents daunting challenges and complex ethics issues for everyone. Most human beings are forced to live with their technological mistakes, but not lawyers. Lawyers have the unique benefit of the “inadvertent disclosure” doctrine. That means the mistake just didn’t happen. If an attorney inadvertently discloses information, the privilege is not waived. State Comp. Ins. Fund v. WPS Inc. (1999) 70 Cal. App.4th 644, 654.

That doctrine recognizes the reality of our lives. The frenzied pace of legal practice means that we cannot be responsible for everything; we are all too busy. We could easily make a mistake and misdirect a fax or e-mail to the wrong recipient. Lawyers who are the unintended recipients are supposed to close their eyes; use their “third eyes” to determine whether they are the true intended party; not read any further; and notify the sender.

This is similar to the “one free dog bite” idea, but is really more akin to a “get out of jail free” card in Monopoly, and it is not working. Creative lawyers apply the doctrine to all types of technological glitches.

For example, in a recent case two lawyers and a client called opposing counsel to leave a voice mail message. After completing the message, they inadvertently failed to disconnect the phone. They then proceeded to discuss plans to steal the intellectual property of the company.

On appeal, those lawyers attempted to assert the inadvertent disclosure doctrine for unintentionally revealing privileged information. However, that was trumped by the crime-fraud exception. This teaches everyone: 1) do not trust merely pushing a button: 2) slow down, place the receiver in the cradle, and listen for a clear, distinct dial tone before going on with your day.

What if you receive a ream of documents in a plain paper bag without any identifying marks? Obviously, you have to read the information to determine if it is privileged or not. This is a critical moment in time, and in your career.

Recent cases strongly suggest that you can’t pretend it didn’t occur and employ the information to your client’s advantage. If you do, you can be disqualified because you failed to notify opposing counsel. See, the problem is that partial lobotomies are too risky. Once a bell has been rung, it cannot be unrung.  

What if opposing counsel feels you are just too vigorous and “accidentally” sends confidential information, thereby sowing the seeds of disqualification? Exposure to confidential information can lead to disqualification, but this opens up whole new panoramas. Disqualification motions are recognized as tactical maneuvers that can be intended to harass opposing counsel.

Wait a minute! All of these scenarios clearly demonstrate that we are forgetting the client, who ought to be the focus of the litigation and our attention. No matter what we think, or double think, it is not just . . . all about us.

Ethics expert Diane Karpman can be reached at Karpethics@aol.com or 310-887-3900.

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