When a lawyer receives and reviews the opponent’s confidential or privileged documents, the opponent will often file a motion to disqualify the lawyer (and request that the lawyer or the lawyer’s client be ordered to return or delete the documents or other information).  These cases occasionally turn on the question of whether the lawyer received the documents through (1) inadvertent disclosure or (2) unauthorized disclosure.  (The relevant ABA Model Rule 4.4(b), for example, applies only to the former, and many states have copied the ABA’s incomplete approach to this issue.)  To treat unauthorized disclosure more leniently can be puzzling given that the actor (whether the lawyer, the lawyer’s client, or someone affiliated with the lawyer or client) usually knowingly trampled on the opponent’s interests in attorney-client privilege or confidentiality.  (This lopsided approach is justifiable in some instances, however, to further other important interests, e.g., to permit investigations into discrimination or to protect in-house counsel fired for refusing to violate the ethical rules.)  In the inadvertent disclosure scenario, in contrast, the lawyer innocently received the privileged or confidential information (although some lawyers have occasionally taken less-than-innocent actions thereafter).

The Northern District of California nevertheless seized on this disclosure distinction and just refused to disqualify a lawyer who received, reviewed, and was poised to use the opponent’s privileged and confidential documents, which the lawyer had obtained through (at least arguably) unauthorized disclosure.  A short news piece on the underlying case is available here, but in essence, the lawyer represents a former employee of the City of Oakland.  Before the employee’s departure from the City, the employee met with the City’s attorneys to discuss a personnel matter involving another City employee, and in the course of those meetings, the employee received privileged and confidential correspondence, legal memoranda, and other documents.  According to the employee, when she later refused “to falsify oral and written reports” relating to the personnel matter, she was fired.  She took the privileged documents with her and then sued the City for wrongful termination.   The City moved to disqualify the lawyer and asked the court to order the return of the documents.  The court refused both requests, reasoning that the City’s motion relied almost exclusively on cases in which the lawyer had received privileged documents inadvertently (not intentionally).  Even though this case did not involve an ousted in-house counsel, the court drew inspiration from the well-known General Dynamics case (General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994)), which permitted a terminated in-house counsel to bring a wrongful termination action notwithstanding concerns over the necessary use of privileged and confidential information.  The court placed General Dynamics on-point because:

plaintiff here participated in confidential and privileged communications during the course of her employment. The parties agree that such communications are relevant to plaintiff’s claims in this case arising out of her termination by the City. To hold that plaintiff may not disclose such information to her attorneys would effectively bar her claims.
. . .
The court also distinguished the California Clark case (Clark v. Super. Ct., 196 Cal. App. 4th 37 (2011)), because here it was unclear whether the former City employee had agreed in writing not to take any documents from her employer in the event of separation or otherwise.  (Whereas in Clark, the former employee “had signed a nondisclosure agreement, which included a provision that he would not remove the employer’s confidential or privileged information and would return all confidential or privileged information on termination of his employment.”)  Thus the practice pointer for lawyers who represent entities: have employees sign an agreement not to take the entity’s documents (especially privileged or confidential ones).  The decision is available here: Preston v. City of Oakland, No. 14-CV-02022, 2015 WL 577427 (N.D. Cal. Feb. 11, 2015).

In other news this week, the ABA will soon be hosting a top-notch CLE on attorney disqualification.  The program was originally created for last year’s CPR conference in California.  Round two should be equally insightful and features ethics greats like Pam Bresnahan and Lucian Pera.  Here is the link for those interested: The Lifecycle of a Motion for Disqualification: From Cradle to Grave.