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Practice Tips: Anonymously Sent Documents - What Should I Do? (Part 2)

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STATE BAR OF NEVADA
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Nevada Lawyer Magazine
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“...an NRcp 16.1 disclosure, if promptly made, constitutes an appropriate method in which to notify the opposing side of any anonymous disclosure.”
practice tips
Glenn machado, Assistant Bar Counsel
ANONYMOUSLY SENT DOCUMENTS – WHAT SHOULD I DO? (PART 2)
recap
Last month’s article detailed the factual background of Merits Incentives, LLC, v. Eighth Judicial District Court, ___ Nev. ___, 262 P.3d 720 (2011). The case involved disclosure of the opposing parties’ documents by an anonymous source, and the Nevada Supreme Court used this case to establish an attorney’s obligations upon receiving anonymous documents that may belong to an opposing party, as this scenario does not fit squarely into Rule of Professional Conduct (RPC) 4.4(b) (Respect for Rights of Third Persons).1 In short, John Mowbray, attorney for plaintiff Bumble and Bumble Products, LLC, received a CD that was anonymously sent to Bumble and contained documents pertaining to Merits Incentives, LLC, along with other defendants. The CD was disclosed to Merits three weeks later in a supplemental NRCP 16.1 mandatory pretrial discovery disclosure. The CD was again disclosed in another NRCP 16.1 supplement, and again cited to in a discovery request, to which Merits issued a general objection, including attorney/work product privilege. The CD’s documents were again referenced in a deposition. Approximately seven months after the first 16.1 disclosure, Merits moved to disqualify Mowbray and his firm, claiming that Mowbray committed professional misconduct. The district court found no wrongdoing and denied the motion. Merits then sought a writ of mandamus from the Nevada Supreme Court. The Nevada Supreme Court, in denying the writ, also affirmed the district court’s decision. to the litigation. Thus, similar to RPC 4.4(b) where the sender’s identity is known, an attorney who receives documents regarding a case from an anonymous source must promptly notify opposing counsel, or risk being in violation of his or her ethical duties and/or being disqualified as counsel. This notification must adequately put opposing counsel on notice that the documents were not received in the normal course of discovery and describe, with particularity, the facts and circumstances of how either the attorney or the client came into possession of these documents. The Nevada Supreme Court found that the NRCP 16.1 disclosure fulfilled this obligation and therefore the district court correctly concluded that Mowbray had fulfilled his ethical duties.
Disqualification Test for Attorneys in Possession of Privileged Documents
Although no misconduct was found, there remained a question of whether disqualification was warranted, even if the attorney was not involved in obtaining the documents. In regard to this issue, the Nevada Supreme Court adopted a non-exhaustive list of factors to aid trial courts in determining whether disqualification is appropriate in such an instance. These factors include: 1. Whether or not the attorney knew or should have known that the material was privileged; 2. The promptness with which the attorney notifies the opposing side that he or she has received its privileged information; 3. The extent to which the attorney reviews and digests the privileged information; 4. The significance of the privileged information, i.e., the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate that prejudice; 5. The extent to which movant may be at fault for the unauthorized disclosure; and 6. The extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney. In applying this analysis, the Nevada Supreme Court concluded that these factors supported the district court’s determination that Mowbray and his firm were not subject to disqualification.
Attorneys must Inform opposing Counsel if They receive Documents Anonymously
The Nevada Supreme Court found that RPC 4.4(b) was not applicable, as written, because the disk was not inadvertently sent to Bumble and Mowbray. Although not directly applicable, the Nevada Supreme Court agreed with the district court, applying RPC 4.4(b) by analogy, as well as with the district court’s conclusion that Mowbray met his ethical duties because he promptly notified petitioners of his receipt of the disk through an NRCP 16.1 disclosure. The Supreme Court took this opportunity to adopt a notification requirement that applies in situations where an attorney receives documents anonymously or from a third-party who is unrelated
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January 2012
The Nevada Supreme Court further noted that although Mowbray’s initial supplemental NRCP 16.1 disclosure of the disk was an adequate method of notification, he further filed an amended supplemental 16.1 disclosure four days later which included another copy of the envelope the disk arrived in. Additionally, approximately one month later, Mowbray propounded a second request for production of documents that included a request spanning 22 pages and individually listing 503 of the documents contained on the disk. The Nevada Supreme Court found that these additional steps, taken by Mowbray, demonstrated that he was not trying to deceive petitioners or conceal his receipt of the disk from them. Accordingly, the Nevada Supreme Court concluded that the district court did not abuse its discretion by denying petitioners’ motion to disqualify Mowbray and his law firm. Our office frequently gets calls from attorneys asking about their obligations to a non-paying client or the duties owed to a client while a motion to withdraw is pending. This call is usually made when a motion for summary judgment or other dispositive motion arrives just as the attorney is seeking to exit the case. In short, the answer is that you are the attorney-ofrecord until and unless there is a substitution of counsel or the court allows the withdrawal (See, e.g., RPC 1.16(c) (Declining or Termination Representation)). In Merits, the Nevada Supreme Court gave little weight to the argument that the petitioners’ failure to object to the CD in a timely manner was due, at least in part, to changing counsel, and the Nevada Supreme Court indicated that counsel’s failure to timely object may implicate RPC 1.3 (Diligence). Our office usually points out to the caller that, as unpleasant as working for a non-paying client may seem, not doing so may leave you vulnerable to a malpractice suit, sanction by the presiding court and/or a disciplinary proceeding. Second, although the Nevada Supreme Court did not specifically adopt a cease, notify and return rule in regard to receiving an opposing party’s documents, as some other states have, an attorney should still be wary of reviewing documents, and/or using documents, that appear privileged. In fact, four of the six factors in the disqualification test weighed awareness of, or using, privileged documents in favor of disqualification. The practical effect of this test is that reviewing and/or using privileged documents is, at a minimum, strongly discouraged. Lastly, as the Nevada Supreme Court found, an NRCP 16.1 disclosure, if promptly made, constitutes an appropriate method in which to notify the opposing side of any anonymous disclosure.
1 RPC 4.4(b) 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.”
observations
January 2012
Nevada Lawyer
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