Say you get an opposing lawyer’s notes, perhaps because he left them in your conference room after taking a deposition.  What ought you to do with them?  Does your duty to your client compel you to read them?  Or do your obligations as an officer of the court bar you from taking advantage?

The Supreme Court of California affirmed last week that lawyers do indeed serve two masters.  The court held that one side’s inadvertent disclosure of its lawyers’ work product (or confidential lawyer-client communications) creates in the other side’s lawyer, the unintending but perhaps willing beneficiary, a responsibility:

Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.

Rico v. Mitsubishi Motors Corp., No. 123808 (Cal. Dec. 13, 2007).  The resolution usually will involve giving the material back.  If it doesn’t, disqualification may follow.

Barry Barnett

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