Friday, December 8, 2006

The New D.C. Rule on Inadvertent Disclosure: A Theoretical Framework

Mike previously noted that the D.C. rules are substantially revised effective Feb. 1, 2007, essentially to follow the "Ethics 2000" revisions, a/k/a the 2002 version of the Model Rules.  One significant point of departure from the current rules he noted was new Rule 4.4(b):  the lawyer who receives aSargenthallsm_1 writing in representing a client and knows, before examining the writing, that it has been inadvertently sent, is instructed to not examine the writing and to notify the sending party (to follow their remedial instructions, e.g., return it, shred it).

Still a very good analysis of the dilemma and the ABA's and bars' possible responses--within a theoretical framework beyond reflexive zealous advocacy--is an article last year by Andrew Perlman of Suffolk Law School (right, just across from the Boston Common and the Massachusetts State House).  The article is not about the D.C. rule as such but does review all of the options and measures them against the role of the lawyer he describes beyond hired gun.  It is found on SSRN and is entitled, "Untangling Ethics Theory from Attorney Conduct Rules: The Case of Inadvertent Disclosures."  Its abstract and cite are after the jump.  [Alan Childress]

The article is now published at 13 Geo. Mason L. Rev. 767.  Its full abstract:

The article addresses a common question: What should the rules require lawyers to do when they receive inadvertently disclosed privileged information from an adversary? Many commentators have incorrectly assumed that ethics theories, such as the zealous advocacy model, can tell us the answer. In fact, existing ethics theories should serve a more limited role: they should only tell lawyers how to behave when the rules do not offer clear guidance.

To correct this mistaken reliance on conventional ethics theories as the primary generators of the positive law, this article develops an alternative model. The model suggests that, when creating professional regulations, we should draw on a wider range of values, including not only zealous advocacy, but also justice, morality, professionalism, consumer protection, consistency with other law, and the numerous considerations that go into lawmaking more generally, such as the reduction of contracting costs. By identifying and then weighing these various factors, this article concludes that the profession can provide a better framework for the development of professional regulations in general and a clearer answer to the inadvertent disclosure issue in particular.

Through the creation of a framework of this sort, it becomes apparent that we need to make two significant revisions to the Model Rule in this area, which at present only obligates recipients of inadvertent disclosures to notify senders about their mistakes. First, the Rule should be revised to require lawyers to return inadvertent disclosures when the senders request such returns, but only if the senders make the request before the recipients have reviewed the documents. Second, in those cases where senders do not discover their own mistakes, the Rule should not require recipients to bring those mistakes to the senders’ attention. The article contends that these proposed revisions are consistent with the wide range of policy rationales that should underlie professional rulemaking.

Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink

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