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Copyright (c) 2009 Georgetown Journal of Legal Ethics
Georgetown Journal of Legal Ethics

CURRENT DEVELOPMENT 2008-2009: What's Yours is Ours: Making Sense of Inadvertent Disclosure

Summer, 2009

Georgetown Journal of Legal Ethics

22 Geo. J. Legal Ethics 1095





Imagine you are an attorney who receives an e-mail from opposing counsel in an ongoing litigation matter. You open the e-mail to find a short description about an attached document. Although you are not familiar with the document based on the summary, you decide to open it to refresh your memory. After reading a few pages of the document, you realize that you were probably not the intended recipient. The opposing counsel's client appears to be the intended recipient--and the document contains instructions for the opposing counsel's client to hide money from the court to avoid a large damages payment.

Assuming the document was inadvertently sent, what will you do? Should you return the document even if it appears not to be privileged? 1 Should you notify the sending attorney that you received a document that was apparently intended for someone else? Should you call your client to discuss the document as you prepare a new strategy for settlement negotiations with opposing counsel? Should you contact the judge about the possible misconduct and explore sanctions against opposing counsel? Finally, should you contact the appropriate bar association for disciplinary action against the opposing attorney? The ethical obligations are not immediately clear, and even after thorough research, many attorneys would be unable to determine the proper steps the receiving attorney should take.

Although the ethical obligations regarding inadvertent document disclosure are vague and unclear, the number of inadvertent document disclosures is increasing. 2 This increase is due, in ...
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