Sometimes you just don’t want to know
By Diane Karpman
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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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