Jim Fischer on unintended disclosures; Gregory Duhl on the ethics of contract drafting

How Should Lawyers Handle the Unintended Disclosure of Possibly Privileged Information, by Jim Fischer.  Abstract:

The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer. Notwithstanding the similarities, case law, commentary, and ethics opinions have tended to treat the issues as separate. This separation has not, however, helped lawyers who are subjected to conflicting and inconsistent opinions as to how they should respond in situations when they have received information that may possibly be privileged.

This article makes two contentions. First, with respect to the privileged status of the disclosed materials, all disclosures unintended from the standpoint of the privilege holder should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyers professional obligations, lawyers who receive materials that are possibly privileged should be allowed to read the materials (1) to determine whether the materials are privileged and (2) to better argue the contention to the court that the materials are not privileged. A lawyer who reads the materials, even past the point when the privileged status of the materials is arguably apparent, should not be deemed to have engaged in professionally improper behavior as long as (1) the lawyer notifies opposing counsel of receipt of the materials and (2) makes no surreptious use of the materials until their status has been clarified by the court.

The Ethics of Contract Drafting, by Gregory Duhl.  Abstract:

This Article provides the first comprehensive discussion of the ethical obligations and duties to non-clients of lawyers drafting contracts. It discusses fraudulent representations, errors, fraud, and "conscious ambiguity" in transcription, as well as "iffy" and invalid clauses, and argues that the standard for lawyer misconduct under the disciplinary rules should be consistent with the purposes of contract law, one of which is to promote trust between contracting parties. Additionally, the Article discusses lawyer liability for negligence to non-parties in contract drafting and contends that lawyers should be liable to non-parties only when they are third-party beneficiaries to the contract between the lawyer and client for the lawyer‘s services. The Article concludes by arguing for a functional set of ethical rules for lawyers drafting contracts that reflect the increasing emphasis on cooperation, rather than competition, in the contracting process.

Comments

[Monroe Freedman]

What about the case where it was the plaintiff himself in a personal-injury total-disability case who erroneously left a voicemail on the defense lawyer's telephone (thinking he was talking in confidence to his own lawyer) saying, "I want to ask you whether I can shoot some hoops with the kids. You got pissed-off with me when I went bowling, so I thought I'd better check with you first."

If the plaintiff's deposition is next week, should the lawyer be required to do anything but wait ("surreptitiously") to reveal it for the first time during the deposition?

Other than protecting a "brother lawyer" from a malpractice action and/or discipline, is it different if the error is committed by the plaintiff's lawyer (agent)? E.g., "I don't want to have to tell you again not to bowl, play basketball, or do anything but sit in your house with the brace on your neck and back until this case is over."