Model Rule of Professional Conduct 1.6(c) provides that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of client information. Generally that isn’t too difficult but things get complicated when it comes to electronic communication. Over 220 billion e-mails are delivered each day. According to reports, e-mail remains the most “pervasive form of communication in the business world.” Given the rampant use of e-mail, eventually there will be mistakes: your e-mail will land in the wrong hands or you will receive an e-mail meant for someone else. In some cases, the disclosure can be harmless, but what happens when the information lands in the hands of counsel for your adversary?
An attorney is held to different ethical standards than the average Joe and failure to comply with those standards can prove costly. A California Superior Court Judge recently disqualified defense counsel over an attorney-client privileged email that was mishandled by defense counsel.
The defense lawyers were representing a law firm and an estate planning partner in two legal malpractice actions stemming from a probate issue. During the course of the litigation the defense attorneys obtained an email that contained an exchange between plaintiff and his attorney in the underlying probate case. The email provided legal advice to plaintiff about how to handle the probate dispute. The email was inadvertently sent to non-parties and subsequently obtained by defense counsel.
Defense counsel took the position that the attorney-client privilege had been waived because the email was in possession of a non-party, and further claimed that no one requested the return of the email in the probate action. Therefore, they reviewed the entire email and provided it to their client to prepare for his deposition in the malpractice suit. Additionally, they questioned plaintiffs about the email at their depositions, which revealed to plaintiffs’ attorneys for the first time that they were in possession of the privileged information. Plaintiffs argued that since the document contained legal advice the defense attorneys should have promptly returned the email upon receipt or sealed it to prevent any further use.
Plaintiffs filed a motion to disqualify defense counsel based upon the use of the email. The California state court granted the motion and ruled that “Counsel’s review and use of the email at deposition goes beyond ‘mere exposure’ and raises the likelihood that this could affect the outcome of these proceedings both in terms of Plaintiff’s rights against use of his privileged communications against him and in terms of the integrity of these judicial proceedings and public confidence in them.”
While a good lawyer will capitalize on the opposing party’s mistakes, before taking advantage of such an error a lawyer should always assess any ethical implications. As demonstrated above, being the unintended recipient of privileged or confidential information may seem like good fortune at the outset but if not properly handled can prove more costly than its worth.