Bar Counsel Notes: Legal Assistant Confronted with Inadvertent Disclosure

Legal Assistant Confronted with Inadvertent Disclosure.

In the course of representing a client, an attorney is told by his legal assistant that she just received a fax that the assistant has read and now believes contains inadvertent disclosures of otherwise privileged information from the opposing party's attorney. If possible, the assistant's attorney should refuse to actually receive and read the document, but in any event must either directly or have his assistant contact that opposing counsel and send back those wrongly received documents, and may not make any copies of them. See Professional Ethics Commission Advisory Opinion #172 (which vacated Opinion #146) and its reference to the Law Court opinion of Corey vs. Norman, Hansen & DeTroy 1999 ME 196.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.