Legal Ethics Forum

Rico v. Mitsubishi to be decided tomorrow (inadvertent disclosure)

As many of you know, the California Supreme Court has been sitting on two inadvertent disclosure cases for a long, long time.  One of them, Rico v. Mitsubishi, will be released tomorrow.  In that case, a lawyer came into possession of the opposing lawyer's privileged notes, either through an inadvertent mistake of the court report who scooped up a bunch of papers and handed them to the wrong lawyer or through outright misappropriation.  The lawyer in receipt of the privileged material then introduced a copy as a deposition exhibit and the opposing lawyer who authored the document didn't recognize his own privilged materials and failed to immediately object.    The California Court of Appeal disqualified the recipient lawyer.  Let' see what the Supremes do with the case.  California has no discipline rule on point, so this will be decided as a matter of common law.

A pretty amazing fact pattern -- but not nearly as amazing as the second case we're expecting from the California Supremes.  In the second case, a lawyer called the opposing lawyer and left an innocent voicemail message.  Unfortunately, the caller didn't hang up the phone and then launched into a highly incriminating discussion which was recorded in his opponent's voicemail messaging system.  Ouch.

Disturbing holding: lawyer must testify against former client

Details over at Legal Profession Blog.  I understand the rationale, which applies the crime-fraud exception, but it's always jarring to hear of a criminal defense lawyer being a key witness against a former client.

Berkeley's Dean Edley is inaugural holder of legal ethics chair

From UC-Berkeley: "Dean Christopher Edley Jr. has been named the inaugural holder of the Honorable William H. Orrick Jr. Distinguished Chair in Legal Ethics and the Legal Profession."

I remember appearing before Judge Orrick.  I can only paraphrase what he said, but it has stuck with me: "I do not assign discovery disputes to magistrate judges.  I handle them myself.  I do that because I want to learn as early as possible which one of you two attorneys is afraid of the merits."  Ha!  As I recall, opposing counsel and I worked out almost all our discovery disputes.

Anyway, I'm glad to see Berkeley now has a chair in legal ethics and that Dean Edley holds it.

Lawyers cleared destruction of tapes?

That's what the NYT's anonymous source says.  For some time now, I've expected that fewer and fewer lawyers will advise clients that they can discard information, even when it seems lawful to do so.  First, you never know what obscure law might get cited as forbidding the discarding.  Second, the discarding only becomes an issue once a controversy has erupted -- at which time, with the benefit of hindsight, the discarding looks conspiratorial (even when it was nothing of the sort).  Third, judges have shown little appreciation for the argument that society should not be required to store massive amounts of information in easily retrievable places for infinite periods of time.  Judges tend to get offended when the evidence they want to see has been discarded, even if the evidence was discarded for routine purposes.  Finally, when the client turns to the lawyer and says "can I discard this?" the lawyer realizes that given the new attitudes about discarding information she may be crossing the line from advisor to primary participant.  The advice is becoming more conservative.

High Profile Fee Dispute Resolved

You may recall Professor Burt Neuborne's controversial fee request in the Swiss Bank/Holocaust litigation last year.  The presiding federal judge has finally ruled on the issue, awarding Professor Neuborne $3.1 million in fees.  The story is here.

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