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SANTA ROSA � The concept of an attorney accidentally obtaining an opposing lawyer’s pretrial notes and using them for his own tactical advantage seemed to leave the justices of the California Supreme Court with a bad taste in their mouths on Tuesday. Especially when an attorney for El Segundo lawyer Raymond Johnson argued that having access to an opponent’s work product provides a surprise factor that lets an attorney test or impeach an expert witness’s testimony. “So the surprise factor is more important than the integrity of the court?” Chief Justice Ronald George asked. “Why not invoke the assistance of the court?” he went on, to determine whether such notes are confidential work product that can’t be used or if they’re non-privileged material that the lucky attorney has the duty to use on his client’s behalf? Some legal pundits have said the decision in Rico v. Mitsubishi Motors Corp., S123808, could represent the court’s most important legal ethics ruling in years. The underlying dispute in the Rico case began in 2002 on the eve of a product liability trial involving a rollover crash of a Mitsubishi Montero sport utility vehicle that resulted in the death of 11-year-old Denise Rico and the partial paralysis of her 18-year-old sister, Serene. At the conclusion of a pretrial deposition, Johnson, who represented the family, discovered he had possession of opponent James Yukevich’s notes concerning a meeting between Yukevich, who represented Mitsubishi, and some of his expert witnesses. Johnson photocopied the 12-page document. How Johnson got the notes is in dispute. Johnson claims a court reporter handed him the document after the deposition, but Yukevich, a partner in Los Angeles’ Yukevich & Sonnett, insists Johnson took them from a briefcase he left in the deposition room for a short time. L.A. County Superior Court Judge Ben Kayashima ruled that Johnson got the briefs “inadvertently.” But he nonetheless disqualified Johnson and his entire legal team from the case after finding that Johnson had breached his ethical duties by surreptitiously using another attorney’s confidential work product. He also said the document was protected by the attorney-client privilege. Los Angeles’ Second District Court of Appeal affirmed that decision in 2004. On Tuesday, Sherman Oaks attorney Norman Pine, a partner in Pine & Pine, argued that his client, Johnson, was only following the dictates of Aerojet-General Corp. v. Transport Indemnity Insurance Co., 18 Cal.App.4th 996. In that 1993 case, San Francisco’s First District ruled that when an attorney accidentally gets his hands on an opposing lawyer’s non-privileged documents, he is duty-bound to use that information to help his client. Pine said Johnson viewed the document he got at the 2002 deposition and determined it wasn’t privileged. He said Johnson believed it to be the notes of Yukevich’s experts and not of Yukevich himself. Pine said Johnson later used the information during deposition to attack Yukevich’s witnesses when they seemed to contradict themselves. Under questioning from the justices, Pine conceded that lawyers have an obligation to contact an opponent if they come into possession of a document that could be the opponent’s work product. But if they believe the document exposes a crime, such as perjury, they don’t need to make contact, he added. Chief Justice George asked whether that exception gives one the right “to exploit” the situation by using the documents “without telling the other side.” Justice Kathryn Mickle Werdegar seemed skeptical of Pine’s position when she questioned whether an expert’s change of mind can actually be considered perjury. “That’s something someone can anticipate?” she asked Pine. Justice Carol Corrigan piled on by asking Pine about a hypothetical situation � if a discrepancy between the notes Johnson found and the experts’ later testimony during deposition turned out to be nothing more than “an honest mistake.” Attorneys, she said, could attempt to claim perjury simply if the change of testimony hurts their case. Mitsubishi’s lawyer, Yukevich, pointed to another case � State Compensation Insurance Fund v. WPS Inc., 70 Cal.App.4th 644 � that he believes is controlling. In that 1999 case, L.A.’s Second District held that lawyers who obtain what appears to be an opponent’s documents should examine them just enough to determine whether they are confidential or not. If they are privileged papers, the court held, the attorney who has them must notify his opponent. The ruling also calls on trial courts to assist in determining what can be used and what is truly confidential. Yukevich said that’s what should have happened when Johnson found the notes. “Attorneys’ notes should be what they are � privileged,” he argued Tuesday. “We need to be able to do the things we do and not worry about dropping a document from a briefcase and have someone come and pick it up and use it.” Despite strict court rules on noise in the courtroom, there was light applause from students in attendance when Yukevich made that statement. Tuesday’s arguments were held in the auditorium of the Sonoma Country Day School as part of the high court’s seven-year-old program to take arguments on the road so students can see how the court operates. Earlier, Justice Marvin Baxter had asked Yukevich what an attorney should do if he finds a document that is clearly labeled as attorney work product. “Does attorney ‘B’ have the right to go beyond the title,” he asked, “read the 12-page document, and then determine its privilege?” Yukevich said no, that as soon as an attorney sees that label, he should stop immediately and call his opponent. Several hundred students watched the morning session in the school’s auditorium, while thousands more saw the arguments on the California Channel. A ruling in the case is due within 90 days.

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