GPSolo Magazine - December 2003
When It’s NOT Better to Give Than to Receive
Unreported decisions—now accessible easily via Lexis and Westlaw—can tease a lawyer shamelessly. In many jurisdictions, unpublished decisions cannot be cited. Still, they often provide keen insight into a particular judge’s viewpoint, present novel applications of the law, and yield a bounty of information. They can even point out ethical dilemmas presented by I advances in technology. A recent unpublished California decision presented just such a quandary, in this case about a bit of technology that’s no longer cutting edge but that still can wound if handled carelessly: the fax machine. What are the liability concerns and ethical obligations in the dreaded nightmare scenario of the inadvertent facsimile?
Lawyers, as mere human beings, cannot guard against every act of carelessness, inadvertence, or error. Mistakes happen. Clarence Darrow is reputed to have said, “Hell, that’s why they make erasers.” An inadvertent or careless fax or e-mail illustrates classic professional negligence, which everyone knows is a tort. Poway Land, Inc. v. Hillyer & Irwin (2002 Cal. App. Unpub. LEXIS 10786) involved the inadvertent fax transmittal of settlement options. As should be expected, the plaintiff asserted garden-variety legal malpractice and concurrently alleged a breach of fiduciary duty claim. Breach of fiduciary duty involves breach of the standard of conduct, as opposed to the standard of care, which is negligence. Lawyers are fiduciaries as a matter of law. The paramount fiduciary duties are confidentiality and loyalty. This case suggests an interesting convergence of negligence and the fiduciary duty of confidentiality.
|GPSolo’s Technology and Practice Guide is proud to welcome you to the first edition of our new column, Techno Ethics, which will discuss the ethical implications of recent advances in technology. Tools such as online research and electronic filing are changing the way you can practice law—and serve your clients. Whether you are a technological savant or a novice who can’t stop your VCR from blinking “12:00,” Techno Ethics will get you thinking about the ethical quandaries lurking behind that nifty new gizmo, program, or website.|
Was the wrongful conduct the careless transmission of confidences? Or was it the substance of what was transmitted? The basis of the plaintiff’s claim was that since its settlement strategy was mistakenly conveyed by fax to opposing counsel, confidentiality was violated. This was not a completely meritless argument.
In Poway, the negligent law firm fully disclosed its error to the client and directed the client to consult with independent counsel, because a conflict of interest was created by the inadvertent fax. This disclosure and advice were crucial to defeating the breach of fiduciary duty claim, since the firm fulfilled its fiduciary obligations of candor and honesty, as opposed to demonstrating self-protection with a cover-up. The lawsuit was dismissed in response to a motion for summary judgment. The appeals court affirmed.
Whereas the duties of the attorney sending an inadvertent fax are fairly straightforward, the obligations of the “recipient” attorney became a source of confusion. The question was addressed in ABA Opinion 92-368; unfortunately, the ethical obligations it placed upon an attorney were so great that they undermined a client’s trust. ABA Opinion 92-368 placed a duty on the recipient lawyer to notify the sender of the mistaken facsimile. Furthermore, the ABA opinion required that “a lawyer who receives confidential materials under circumstances where it is clear that they were not intended for the receiving lawyer (a) should not examine the materials once the inadvertence is discovered.” Wait a minute—how do you “discover” such “inadvertence” unless you read it? A crystal ball? There sits a hapless lawyer, on another Wednesday, thinking that she is receiving just another fax or e-mail. Instead, she receives a weapon of mass destruction in her relationship with her client.
A mistaken fax transmission thus plants seeds of doubt and speculation in the mind of client and counsel alike. Was it purposely sent to taint opposing counsel? Can the client continue to trust the loyalty of his lawyer, who suddenly has a reporting obligation to the enemy camp? The client may wonder if his lawyer is truly his champion. If the lawyer is loyal and partisan, why didn’t she even read the fax, let alone make use of the powerful information it may contain?
Obviously, Opinion 92-368 was not a solution. It was arguably repealed in 2002 by modifications to ABA Model Rule 4.4. That rule now requires only that the recipient of privileged documents (mistakenly sent most often during discovery) notify the sender. That means, a lawyer now can read and use the information, which is consistent with the undivided duty of loyalty owed to the client. And you can toss out that crystal ball.
So maybe now you’re off the hook when receiving an errant fax. The same cannot be said for sending them. Too bad fax machines don’t come with erasers.
Diane L. Karpman, a California ethics expert, represents attorneys before the California State Bar, handles risk management for firms, and is frequently retained as an expert witness in legal malpractice, conflicts of interest, and other related matters. She can be reached at firstname.lastname@example.org.