Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Third District Court of Appeal in which it held that a lawyer’s receipt and “skimming” of confidential mediation statement of the opposing party does not require the disqualification of the party’s lawyer. The opinion is Maribor v. Dreiling, Fla. Dist. Ct. App. 3d Dist., No. 3D12-300 (8/22/12) and is attached.
During extensive litigation between siblings over their mother’s estate, the plaintiff’s lawyer asked an assistant to serve a summary judgment motion by e-mailing a copy to defendants’ lawyers at the Heller Waldman law firm and mailing a hard copy. After e-mailing the motion, the assistant realized that the e-mail did not mention that a copy would also be mailed and she sent a follow-up e-mail noting that she had sent a hard copy. The assistant inadvertently attached a confidential mediation statement to the e-mail instead of the summary judgment motion. The e-mails were sent to two Heller Waldman partners, Glen Waldman and Eleanor Barnett, and their assistant. Waldman and the assistant never reviewed the statement.
According to the opinion, Barnett was out of the office when she received the e-mails on her mobile telephone and did not open them. When she returned to the office, she instructed her assistant to print out the summary judgment motion and “whatever came in while I was out related to this cause.” The assistant printed out a copy of the motion and the mediation statement, and forwarded the e-mails and their attachments to the clients.
The lawyer read the summary judgment motion and began to “skim” the mediation statement after checking to confirm that it did not contain a prominent confidentiality notice and assumed it was sent intentionally. Later the same day, the lawyer sent opposing counsel an e-mail about a scheduling issue mentioned in the mediation statement. After receiving the e-mail, the opposing lawyer realized the inadvertent disclosure and requested that all copies of the mediation statement be destroyed and the lawyer immediately complied.
The opposing party then moved to disqualify, claiming that the receiving lawyers violated Rule 4-4.4(b), Rules Regulating The Florida Bar, which states that “(a) lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” The trial court appointed a special master, who found that the confidential mediation statement was essentially a position paper stating obvious and well-established positions of each side in the litigation.
According to the special master’s report, the mediation statement outlined uncontested facts, “(made) passing comments on the obvious motivations of the parties”, and tracked the legal issues without revealing any weakness in the plaintiff’s case or providing any information that would give the defendants a tactical, strategic, or legal advantage. The trial court issued an order adopting the special master’s recommendation and denied the motion to disqualify. The opposing party appealed and the opinion affirmed the trial court’s order refusing to disqualify the lawyer or firm.
In affirming, the opinion pointed to the lawyer’s assertion that she did not realize the statement was confidential before skimming it and the fact that she had all copies destroyed immediately after she learned that it had been sent in error. In addition, affidavits in the record documented the minimal review of the statement and eliminated any possibility that the lawyer or the firm obtained an unfair informational advantage in the case. According to the opinion, “the events that transpired in this case are not attributable to unethical conduct…(but) illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.” (emphasis added).
The opinion also cited Florida case law and provided the following elements for review in determining whether a lawyer should be disqualified based on inadvertent disclosure of confidential information:
The receipt of an inadvertent disclosure warrants disqualification when the movant establishes that: (1) the inadvertently disclosed information is protected, either by privilege or confidentiality; and (2) there is a “possibility” that the receiving party has obtained an “unfair” “informational advantage” as a result of the inadvertent disclosure.
The opinion stated that the above two elements must be considered together since only an inadvertent disclosure of privileged or confidential information can yield an “unfair” informational advantage and the fact that inadvertently disclosed information is privileged or confidential, standing alone, does not automatically require disqualification. The second element is also broader than the first and, in determining whether to disqualify a lawyer, courts should look not only to the content of the inadvertent disclosure, but also to the actions the receiving lawyers took upon receiving the inadvertent disclosure.
The opinion listed two reasons why courts should focus on the actions of the receiving lawyer/law firm:
First, it would be impossible to evaluate the possibility of an unfair advantage without knowing how and to what extent the lawyers reviewed, copied, or disseminated the inadvertently disclosed information. The opinion noted that, in Atlas Air v. Greenberg Traurig P.A., 997 So. 2d 1117 (Fla. 3rd DCA 2008), the lawyer asserted attorney-client privilege and work product protection when asked during deposition whether privileged materials were provided to other attorneys in the firm and the lawyer’s refusal to answer made it impossible to determine the extent of the tactical advantage that the lawyer/law firm may have gained.
Second, the actions of the receiving lawyers may assist in determining whether any informational advantage was received “unfairly,” as in Abamar Housing & Dev. Inc. v. Lisa Daly Lady Decor Inc., 724 So. 2d 572 (Fla. 3rd DCA 1998). The Abamar opinion focused on the receiving lawyer’s failure to take steps to mitigate the inadvertent disclosure and found that a lawyer who complies with the Rules of Professional Conduct upon receiving an inadvertent disclosure will not be subject to disqualification.
After conducting the above analysis, the opinion agreed with the special master that nothing within the mediation statement created a possibility that the defendants gained an informational advantage and that the brief and cursory nature of the receiving lawyers’ exposure to the statement and the minimal way in which they handled, reviewed, and disseminated it, showed there was no possibility that the firm gained an unfair informational advantage. The opinion also found that the trial court correctly rejected the plaintiff’s argument that the lawyers violated Florida Bar Rule 4-4.4(b) since the record supported the findings that the receiving lawyer did not know that the mediation statement was confidential and that this lack of knowledge was reasonable under the circumstances.
With regard to the mediation statement, the opinion stated that nothing in a mediation statement automatically alerts a person that it is confidential since it is not uncommon for a party to send a mediation statement to opposing counsel and trial judges sometimes require it to be sent. The opinion also stated that the mediation statement did not prominently indicate that it was confidential. Although the first paragraph contained statement about the confidentiality of the statement, the receiving lawyer stated that she did not read that portion and, “(b)ecause the admonition was not placed in bold, underlined, italicized, capitalized, or otherwise designed to stand out to a reader who was merely skimming the document, it was reasonable for the trial court to conclude that (the lawyer) overlooked the admonition.” Finally, the opinion noted that the lawyers mitigated the inadvertent disclosure since the receiving lawyer immediately had all copies of the mediation statement destroyed when she was notified that it was confidential.
Bottom line: As the opinion said, “the events that transpired in this case are not attributable to unethical conduct… (but) illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.” Lawyers (and their assistants) must be extremely careful when sending documents as attachments to e-mails, particularly to opposing counsel! Of course, the receiving lawyer should be very wary as well since there are certainly cases wherein a lawyer who inadvertently received and reviewed a confidential and/or privileged document or information was disqualified…or worse.
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
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