New meaning of 'inadvertent receipt' given

By DIANE KARPMAN

Karpman

In one of the biggest ethics cases of the year, Rico v. Mitsubishi (Dec. 13, 2007) <courtinfo.ca.gov/opinions/ documents/S123808>, a unanimous California Supreme Court explained what action is required when a lawyer receives privileged documents through inadvertence. We all knew that "inadvertent" receipt could be created by unintended e-mails, faxes and massive document productions. Who would have thought that a court reporter handing a document to a lawyer for identification could trigger the "inadvertent" protocol? With a big bang, the universe of inadvertent receipt expanded.

In Rico, defense lawyers claimed that a document was taken out of a file. Plaintiffs' lawyers said that the court reporter handed him the 12-page document. The court determined there was insufficient evidence to find that the document was taken, so receipt was inadvertent. Plaintiffs' lawyer thought the document would be powerful for impeachment, so he read the document (big mistake) and made copies for his co-counsel and experts (next big mistake).

The document consisted of notes taken by a paralegal at the guidance of a lawyer. Since it was work product, it was not subject to the crime fraud exception to the attorney-client privilege. Therefore, use for impeachment was out of the question. "By its own terms, the crime fraud or exception does not apply to attorney work product." In the hierarchy of privileges, in California, work product (Code Civ. Proc., &sect;2018.010 et seq.) is king.

Once a lawyer's thought process touches the document, the work product privilege attaches. This protects from civil discovery any writings that contain "an attorney's impressions, conclusions, opinions or legal research or theories." The order of files in a briefcase can express an impression of how a case should progress, and therefore is absolutely privileged. Although the notes in Rico were drafted by a paralegal, they contained the lawyer's ideas. The lawyer's thinking was "inextricably intertwined" in the notes.

Rico makes the proper protocol crystal clear and failure to follow these steps can result in disqualification. If you receive a mysterious unmarked document, you can only read enough to know that you are not the intended recipient. Then, you must stop reading and notify the other side. Do not make copies for distribution. Containment is critical. You must be aware because, conceivably, another lawyer could put confidences in your mailbox, setting a trap. Courts have recognized that motions for disqualifications are often employed for tactical advantages.

In Rico, the documents were unmarked and contained no privilege stamp or mark to alert the reader. However, the "absence of prominent notations of confidentiality does not make them any less privileged." In this new year, why not move our privilege warnings from the bottom of e-mails to the top, to get the protections we are entitled to?

The lessons we learned as kids still sound a certain resonance in our practices. Remember your folks telling you not to "take candy from strangers?" Lawyers cannot accept documents or candy from court reporters.

• Diane Karpman, a legal ethics expert, can be reached at 310-887-3900 or at karpethics@aol.com.