June 01, 2016

Ethics: Handle with Care

Bruce Green

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What should litigators do upon receiving potentially useful, probative documents that may have been misappropriated or wrongly given to them? This is one of litigators’ hardest ethics questions.

A New Jersey lawyer faced this question in a wrongful death lawsuit that he brought for a deceased patient’s estate against a hospital and its doctor. Before trial, the lawyer received an envelope addressed to him containing copies of the hospital’s documents. The hospital had created the documents under a state law requiring it to report and investigate adverse events at the hospital. The law also provided that privilege protected documents created during the process.

The estate’s lawyer knew that the documents might be privileged (as they turned out to be) and that the sender probably lacked authority to provide them (as also turned out to be true). But the documents were helpful.

Should he (1) return or destroy the documents; (2) notify the hospital and, if appropriate, litigate the question whether they may be used; or (3) study the documents, tell no one, and use them to the client’s advantage at the most propitious moment? The lawyer took the last course. The court found it was the wrong one, leading to the lawyer’s disqualification, which the appeals court upheld. Jablow v. Wagner, 2015 N.J. Super. Unpub. LEXIS 778 (N.J. Super. Ct. App. Div., Apr. 8, 2015).

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