Trojan Rabbits

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Most of us associate DQ motions with conflicts.  That’s true, of course.  But a recent decision disqualifying a law firm from a pair of legal malpractice cases had nothing to do with conflicts.  Rather, the court disqualified the firm based on its misuse of an inadvertently produced privileged document.  Upon receiving an email containing legal advice from the opposing party’s attorney in the underlying proceeding, the attorneys failed to notify their opponents. Instead, according to the DQ motion, they retained the document, allowed their client to review it to prepare for a deposition, and used it to question opposing party deponents about the legal advice it contained. The court criticized the conduct as affecting not only the privilege holder’s rights, but also “the integrity of these judicial proceedings and public confidence in them.”

To avoid this unpleasant predicament, lawyers should be aware of their duties relating to inadvertently produced documents. While requirements can vary by jurisdiction, guidelines to keep in mind are:

* Notify. Rule 4.4(b) of the Model Rules of Professional Conduct requires an attorney receiving a document that appears to have been inadvertently sent to promptly notify the sender to permit that person to take protective measures.

* Plan Ahead. Rule 26(f)(3)(D) of the Federal Rules of Civil Procedure requires the parties to confer at the outset of the case about the handling of privileged documents, including whether to enter a stipulation or secure a court order governing inadvertently produced documents.

* Return, Sequester, or Destroy. Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, in turn, requires a party that has been notified it has received privileged material to “promptly return, sequester, or destroy the specified information and any copies it has,” to refrain from disclosing and using such information, and also to take reasonable steps to retrieve the information from any third parties to whom the receiving party disclosed it.

So when you seemingly receive a “gift” from your adversary, be careful.  It could have unintended negative consequences.  Then again, maybe not.