January 24, 2018 Top Story

Court Expands Ethical Duties for Handling Inadvertent Disclosures

Duties now extend to information received from the attorney’s own client

Josephine Bahn

Litigators, beware—an attorney's ethical duties with respect to inadvertently disclosed documents apply not only to privileged records produced by opposing counsel but also, for the first time, information received from the attorney's own client.

Ethical duty against inadvertent disclosure now may also apply to a firm's own clients

Ethical duty against inadvertent disclosure now may also apply to a firm's own clients

iStockphoto by Getty Images

A divided California appeals court affirmed the disqualification of a law firm that used privileged emails without following the state's procedure for handling inadvertent disclosures. The decision departs from the conventional assumption that a client's own file, including information obtained from the opponent pre-litigation, is fair game. The opinion also highlights that regardless of the document's provenance, practitioners should be on the lookout for any potential inadvertent, privileged disclosures and act in accord with the applicable ethical guidelines.

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