Inadvertent document productions and the threat of attorney disqualification.

• Author: Mark, Etan
• Position: Florida

Before you embark on the journey of revenge, dig two graves. ~Proverb

Imagine a scenario in which a particularly obnoxious opposing counsel dumps 10,000 pages of documents on your doorstep three weeks late and the day before a hearing on a motion to compel. Seven hours later, frustrated and bleary-eyed from mind-numbing review, you stumble across an e-mail from opposing counsel to his client, with the subject line "case strategy." While thoughts of waiver may begin dancing excitedly in your head, you must tread carefully; you have unwittingly begun a potentially self-destructive journey into uncharted waters. If you attempt to gain any advantage from counsel's "mistaken" disclosure of this document, you face the strong possibility of disqualification.

The specter of inadvertent disclosure of privileged documents looms large over the psyche of an attorney engaged in a high-volume document production. The sheer quantity of discovery is capable of quickly overwhelming any lawyer or paralegal, and unfortunately, inadvertent disclosure of privileged documents is becoming more common. Whether such an inadvertent disclosure constitutes a waiver has already been thoroughly examined by a host of law review articles, journals, and periodicals, and will not be addressed any further here. (1) This article examines how an attorney who receives a privileged production is expected to mitigate the damage to the adversary, and the potentially dire consequences if the attorney fails to do so.

Courts in Florida have high expectations from their attorneys; those expectations are not lessened for an attorney who receives inadvertently produced privileged documents. Indeed, attorneys who inadvertently produce the documents are capable of turning their inadvertence into a formidable weapon in the form of a motion to disqualify. Throughout the U.S., courts routinely express a reluctance to consider motions to disqualify. Choosing your attorney has been called "one of the most important associational freedoms that a person may have"--therefore, "a court must be sensitive to the competing interests of requiring an attorney's professional conduct and preserving client confidences and, on the other hand, permitting a party to hire the counsel of choice." (2) The Second Circuit Court of Appeals in Government of India v. Cook Industries, Inc., 569 F.2d 727, 739 (2d Cir. 1978), has noted that "there is a particularly trenchant reason for requiring a high standard of proof on the part of one who seeks to disqualify his or her former counsel, for in disqualification matters we must be solicitous of a client's right freely to choose counsel--a right which, of course, must be balanced against the need to maintain the highest standards of the profession." (3) The Sixth Circuit Court of Appeals in Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir. 1988), made a similar observation: "the ability to deny one's opponent the services of capable counsel, is a potent weapon." (4) Nonetheless, as discussed in more detail below, courts in Florida will not hesitate to disqualify an attorney who capitalizes on an adversary's mistakes and gains an "informational advantage" as a result of an inadvertent document production.

The Ethical and Regulatory Framework

In February 1994, The Florida Bar issued an ethics opinion stating that in the event of an inadvertent disclosure of documents (electronic or otherwise), "an attorney, upon realizing or reasonably believing that he or she has received a document or documents that were inadvertently misdelivered, is ethically obligated to promptly notify the sender of the attorney's receipt of the documents. It is then up to the sender to take any further action." (5) In 2006, the Rules Regulating The Florida Bar were amended to include a provision that codifies this ethics opinion. (6) The body of that rule, entitled "Respect for Rights of Third Persons," states:

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. (7)

The comment to Rule 4-4.4 cautions that zealousness in representation "does not imply that a lawyer may disregard the rights of third persons." (8) Moreover, "[i]f a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures." (9)

The Federal Rules of Civil Procedure provide a bit more guidance:

[T]he party making the claim must notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim of privilege is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (10)

The advisory committee notes further state:

[N]o receiving party may use or disclose the information pending resolution of the privilege claim.... In presenting the question [of whether the information is privileged], the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility. (11)

With this...