Mark M. Iba, Stinson Morrison Hecker LLP, Kansas City, Mo.
Much has been written of the lawyer's duty under Rule 4.4(b) of the Rules of Professional Conduct to notify the sender of a document that the lawyer knows or reasonably should know was inadvertently sent. But what are a lawyer's duties when she receives an opponent's documents from an anonymous third party or from her client? Does she need to disclose them to her adversary? Can she read them? Can she use them? Although the ethics rules do not specifically address this scenario, several recent cases offer guidance.
The Master Plan to Capture Superman
A Hollywood producer and lawyer teamed up with the heirs of Superman's creators to arrange for a new movie and also to manage preexisting litigation they had against D.C. Comics over the intellectual property rights to the Man of Steel. Problems arose when one of the producer's attorneys left his employment and absconded with copies of allegedly privileged documents. The lawyer sent a copy of the documents anonymously to D.C. Comics along with a cover letter detailing the producer's "alleged master plan to capture Superman for himself." Claims over the documents were ultimately decided in In re Pacific Pictures Corp., 679 E3d 1121 (9th Cir. 2012), in which the court held that the producer's voluntary disclosure of the documents to the U.S. Attorney to conduct an investigation over his former employee's actions permanently waived the privilege, even though the disclosure was made pursuant to a confidentiality agreement with the government.
With respect to the conduct of D.C. Comics, the court observed that the company did not "exploit the documents." Instead, it entrusted them to outside counsel, which requested copies of the documents through ordinary discovery in the pre-existing litigation over Superman. When the producer resisted, the discovery dispute was taken to a magistrate judge, who ordered him to turn over the documents. While the producer's voluntary disclosure to the U.S. attorney was kryp-tonite to any...