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Wednesday, December 26, 2007

Finders Keepers? I Don't Think So!

Although legal ethics rules can be counterintuitive, many ethical dilemmas can be resolved by the application of common decency and morality. One basic norm we were taught as early as kindergarten, is that when you find something that does not belong to you and you know its rightful owner, you return the property to that person.

Picture this: Somehow your opposing counsel ends up with your twelve pages of notes of a meeting you and your experts had preparing a defense for your client. Instead of returning to you your attorney work product, your opponent makes copies of your notes, shares them with co-counsel, and uses them to prepare a line of questions to impeach one of your experts at trial.

Does this seem like ethical behavior to you? I hope not. The Supreme Court of California declared this conduct unethical and disqualifed the errant lawyer and his firm in Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07.

The appropriate course of action that the plaintiff's lawyer should have taken was explained by the court:

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

Exploitive behavior of this type is a recipe for disaster. Perhaps some lawyers need to go back to kindergarten to learn that you simply don't take or use property that does not belong to you.


dr.alistair said...

"good business"? yep, unfortunately. been around lawyers recently?

Lyn said...

It's lovely to think that there are lawyers--anywhere in the world that would actually behave in the manner you described. I had three lawyer and a chief of police commit perjury to cheat me out of $16,000.00+ when I volunteered to wait for payment for services to prevent them from facing a scandal for gross mismanagement of funds at a non-profit agency.

Of course, we also live in a country where the US patent office granted five companies ownership of eleven genomes in my body without consulting me or even notifying me that five companies actually OWNED a portion of EVERY cell in my body.

It's a wonderful world.