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Inadvertent Disclosures: CA Supreme Court Establishes Duties of Attorneys, But Issues Remain
An attorney's receipt of apparently privileged materials during litigation presents a conundrum. Was the disclosure purposeful or inadvertent? May the lawyer assume the privilege was waived? What are the recipient lawyer's duties? How should the lawyer respond? Should the lawyer receiving the seemingly privileged documents notify opposing counsel? How extensively should the lawyer analyze the documents before notifying opposing counsel? Does the content of the document matter? May the lawyer receiving the privileged information provide it to his client or expert to analyze?
Many of these questions were posed in the article, 'Inadvertent Disclosure of Privileged Material Presents Complex Ethical Issues for the Recipient,' published in the July 2005 edition of Product Liability Law & Strategy, which highlighted the California Supreme Court's opportunity in Rico v. Mitsubishi Motors to establish the ethical duties of lawyers who receive privileged documents mistakenly.
This past December, the California Supreme Court published its opinion in Rico v. Mitsubishi Motors Corp., 68 Cal.Rptr.3d 758, 171 P.3d 1092 (Dec. 13, 2007) ('Rico'). The court adopted the 'fair and reasonable approach' originally formulated by the Second District Court of Appeal in State Compensation Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 82 Cal.Rptr.2d 799 (1999), and set forth the duties of attorneys upon receiving inadvertent disclosures.
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