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Grub first, then ethics.” � Bertolt Brecht. As a profession, lawyers tend to be adequately fed; so ethics ought to come first for us. Yet our hunger to exploit every advantage for the good of our client sometimes messes with our ethical compass. Where lines are grey, advocates will push lines. But the California Supreme Court is due to issue an opinion in the next few weeks that is likely to add considerable black and white to the line between ethics and advocacy. Inadvertent disclosure of privilege materials You represent Papa Bear Inc. in litigation with Baby Bear Co.; the critical issue is whether Papa and Baby had a contractual relationship or a partnership � did Papa owe Baby merely contractual duties or fiduciary ones? After you have deposed Baby’s president, Baby makes a supplemental document production of 16 septillion documents. Buried in the haystack you find a needle marked “Confidential Attorney Client Privilege Work Product This Is Sensitive Holy Grail We Really Mean It.” You are not concerned with the label, since the same legend on every e-mail produced, not to mention a few dozen hard-copy documents that are merely cover letters or documents addressed to “Dear Occupant” with copies to the entire state voter registration list. But this particular document is a memo from Baby’s main deal lawyer to the senior management of the company, laying out his analysis of the critical facts, impressions of the witnesses and assessment of the potential outcomes, warts and all. And, oh, those warts. Baby’s president unequivocally claimed in his deposition that everyone without exception at Baby operated as if the relationship was a partnership. But now you have Baby’s lawyer’s memo, detailing 20 instances or so of Baby conduct inconsistent with a partnership theory. Boy, are you going to have fun with this memo when you spring it on Baby at trial. But are you? Can you use the document? “What?” you scream at your conscience, “Why not?” “Well,” your conscience patiently reminds you, “legal ethics generally require that you notify the other side if an inadvertently produced privileged document falls into your hands.” The Federal Rules require no such thing. Fed. R. Civ. P. 26 requires that a receiving party return, destroy or sequester (pending court guidance) an inadvertently produced document � but only after receiving notice from the producing party. Without notice from the sender, the recipient need do nothing. But the majority of the states impose an ethical rule over and above the Federal Rules. ABA Model Rule of Professional Conduct 4.4 provides that “a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” As of 2006, when Professor Andrew Perlman did a review, more than 30 states had adopted some form of the rule or had court or bar opinions that mirror it; and a number of states were considering adoption. 13 Geo. Mason L. Rev. 767, 783-85 (2006); see, also, Conn. Rule of Professional Conduct 4.4 (2007). Oh drat. You have to tell the other side you have the memo. No surprise. And once told, Baby will try to claw it back. No juicy cross. Drat, drat, drat. Now that doesn’t mean that you cannot try to convince the court that production has waived the privilege. But good luck. A few courts hold that voluntary production of a privileged document, whether intentional or accidental, is a waiver of the privilege. See FDIC v. Singh, 140 FRD 252, 253 (D. Maine 1992). But the majority of jurisdictions apply a flexible test on a case-by-case basis, and more often than not find no waiver. Angell Investments LLC v. Purizer Corp., 2002 U.S. Dist. Lexis 11545 (N.D. Ill. 2002). The point is that you don’t get to decide whether the production was inadvertent or intentional � that’s the court’s decision. If you have a document that you suspect has been inadvertently produced, you have to tell the other side so that they can tee up the issue for the court. And if you don’t � if your internal conscience opts for surprise rather than notice, there are very real consequences. Raymond Johnson represented the plaintiffs in an SUV rollover case. During the deposition of a defense expert, Johnson somehow walked away with a 12-page document with the innocuous heading “August 28, 2002; LEC; 10:30.” The document, it turns out, was opposing counsel James Yukevich’s notes of a meeting with defense experts, containing Yukevich’s thoughts and impressions of the strengths and weaknesses of the conflicting expert opinions; it also recorded statements attributed to the experts that were at odds with their deposition testimony. Johnson sprung the document at the deposition of the second defense expert to effectively impeach his testimony and the testimony already given by the first expert. Yukevich demanded return of the document and moved to disqualify Johnson. Johnson maintained that the court reporter had accidentally handed the document to him; Yukevich claimed that the document was taken from his briefcase while he was out of the room. Whatever. The trial court declined to find that the document had been stolen as asserted by Yukevich and found that Johnson obtained it inadvertently. But the court found that Johnson had violated an ethical duty to notify Yukevich that the document had come into his hands and by using the document without notice. Rico v. Mitsubishi Motors Corp., 10 Cal. Rptr. 3d 601, 604 (Calif. 4th Ct. App. 2004). Johnson argued that not only was he not ethically required to notify Yukevich, he was actually duty-bound to use the document to his client’s advantage, citing Aerojet-General Corp. v. Transport Indemnity Ins., 22 Cal. Rptr. 862 (Calif. 1st Ct. App. 1993). The Aerojet court reversed the trial court’s imposition of sanctions for failure to notify opposing counsel that privileged materials had fallen into the sanctionee’s hands. Moreover, the court suggested that there was an affirmative ethical obligation to use the inadvertently produced material: Once counsel “acquired the information in a manner that was not due to his own fault or wrongdoing, he cannot purge it from his mind. Indeed, his professional obligation demands that he utilize his knowledge about the case on his client’s behalf.” Id. at 867-68. Had Aerojet been the sole authority on the subject, Johnson would have been fine. Problem was, Aerojet was limited on its facts. In Aerojet, there was no showing of any prejudice from the failure to give notice, since the only thing used from the inadvertently privileged materials was the name of a previously undisclosed witness � something that had to be disclosed anyway. Oh, and the producing party won its case. So when the issue next arose, in State Comp. Ins. Fund v. WPS Inc., 70 Cal App. 4th 644, 656 (Calif. 2d Ct. App. 1999), the court distinguished Aerojet on its facts and announced the rule for the future: When a lawyer who receives materials that obviously appear to be privileged and where it is reasonably apparent that the materials were provided through inadvertence, the receiving lawyer must immediately notify the sender. And the future caught up with Johnson. Now, Aerojet was in the 1st Appellate District; State Fund was in the 2d District. And Johnson did what he did in the 4th District. So he had a perfect right to argue that the Rico court should follow Aerojet, not State Fund. But the Rico court had an equally perfect right to reject that argument, and it did: “For cases following State Fund, there is an ethical duty immediately to disclose inadvertently received privileged information. More precisely, an attorney who inadvertently receives plainly privileged documents must refrain from examining the materials any more than is necessary to determine that they are privileged, and must immediately notify the sender.” Rico, 10 Cal. Rptr. 3d at 613. The court found Johnson had violated his ethical duty by failing to notify Yukevich that the document had come into his hands and by using the document without notice. Motion granted; Johnson � and his experts � were disqualified. Id. at 604. Conflict in California will be cleared up soon Whatever conflict may remain among the districts of California, it will all be cleared up soon. The Rico case was argued to the California Supreme Court on Oct. 3, and an opinion is expected by the end of the year. If the press reports are to be believed, Johnson should not have high expectations. For example, Mike McKee of The Recorder, an affiliate of The National Law Journal, reports that the chief justice asked Johnson’s lawyer, “So the surprise factor is more important than the integrity of the court?” Ouch. Johnson may get some relief. The court might conclude that disqualification is too harsh a sanction; it might conclude that there is an exception to the notice rule when the inadvertently disclosed material provides evidence of perjured testimony. But whether or not Johnson gets a bone, his clients got a disqualification order in 2004 and presumably had to move on to new lawyers and new experts. And unless the California Supreme Court decides to go decidedly against the current, we anticipate that Rico will settle once and for all that a party who inadvertently receives a privileged document must immediately notify the producing party. Ethics first, then grub for advocacy. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman and past chair of the American Bar Association Discovery and Trial Practice committees, can be reached at [email protected]. Byman can be reached at [email protected].

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