Tuesday, January 8, 2013

Document Review Not Unethical

A single justice of the Massachusetts Supreme Judicial Court agreed with the Board of Bar Overseers that a former associate attorney of a major (and unnamed) Boston law firm violated no ethics rule in searching the public section of the firm's document management system (called DeskSite) for evidence to support her claims of sex discrimination and retaliatory discharge against the firm.

The associate had already filed a complaint with the Commission Against Discrimination but was still employed at the firm when the document review took place.

The retaliation claim came after she was terminated.

Justice Spina noted that the conduct was not criminal, that the attorney was permitted and expected to be on the system and that she had acted openly with knowledge that her activities were monitored by the law firm.

In sum:

...the Respondent here was given full access to the public space of DeskSite, including any documents the employer may have left there. That the Respondent viewed the documents and found non-privileged, non-confidential information to support her claims may have been frustrating to her employer, but it does not make her an unethical attorney.

A hearing committee had found misconduct and recommended a public reprimand.

The case is In the Matter of An Attorney, decided August 6, 2012. (Mike Frisch)


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