Thursday, August 30, 2012

Inadvertent Disclosure of Mediation Statement not grounds for Disqualification

Cursory review of a confidential mediation statement sent to opposing counsel does not require disqualification according to the Third District Court of Appeal in Moriber v. Dreiling (Case No. 3D12-300, decided 8/22/12). The receiving lawyer claimed she did not realize the statement was confidential before skimming it and immediately destroyed it, eliminating unfair advantage in the case. The court found events that transpired in the case "not attributable to unethical conduct” but rather “illustrate some of the adverse consequences resulting from the injection of technology into today's modern and busy law practice.” Ethical rules require immediate return upon notification of such mistakes. An assistant inadvertently attached a confidential mediation statement an email rather than a summary judgment motion as she had intended. The lawyer was out of town when she received the emails on her cell phone, and did not open them until staff printed out a copy. It was argued the attorney violated Florida Rule of Professional Conduct 4-4.4(b). That rule dictates 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.” Interestingly, the trial court appointed a Special Master, who found that the mediation statement was essentially a position paper stating obvious uncontested facts, having no informational advantage. See full synopsis here-