October 6, 2011
No Disqualification For Receipt Of Confidential Information
A decision issued today by the Nevada Supreme Court is summarized below:
In this original writ proceeding we review a district court’s decision to deny a motion to disqualify opposing counsel, when opposing counsel reviewed confidential documents he received, unsolicited, from an anonymous source. We initially conclude that although there is no Nevada Rule of Professional Conduct that specifically governs an attorney’s actions under these facts, the attorney in this case fulfilled any ethical duties by giving prompt notification to opposing counsel, soon after his receipt of the disk from an unidentified source, through an NRCP 16.1 disclosure.
We must also determine whether the district court abused its discretion when it refused to disqualify counsel, even though one of the documents sent to counsel was privileged. We adopt factors to aid a district court in determining whether disqualification is warranted under such circumstances, and conclude in this case that the factors weigh in favor of the district court’s decision. Therefore, although we consider the writ petition, we ultimately deny the relief requested.
The plaintiff in the underlying litigation manufactures and sells high-end salon products. Defendants contracted to distribute the products. Prior to the suit, one of the defendants fired an employee who allegedly stole confidential and proprietary information.
The information at issue here was received by plaintiff at its New York headquarters in an anonymous package from Lebanon.
Notably, the court concluded that the receiving attorney did not violate Nevada ethics rules by reading the material. (Mike Frisch)
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