Monday, July 7, 2008

Who Will Save Our Souls?

This summer I am encountering issues that lawyers face day in and day out as they parry with their opponents over discovery and trial prep. Chief among their concerns is e-discovery, especially in light of the recent Qualcomm verdict and our growing culture of technology. But, is the fast moving pace of information causing us to lose that powerful pause, that moment in which our conscience can speak to us, and guide us down "the [road] less traveled by"?

The ABA's Model Rules of Professional Conduct (2004) include Rule 4.4 "Respect for Rights of Third Persons." Section (b) reads, "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." As might seem obvious, there is no mention in the Rule about not reading the document, which includes email. The Rule only instructs notification of one's opponent. Indeed, the comment to Rule 4.4 says that the lawyer "may" return the document "unread," but that this is "a matter of professional judgment ordinarily reserved to the lawyer."

When I learned of this I was surprised. I can understand beginning to read the email, realizing that it was not for your eyes, immediately closing it, and then holding on to it while the parties and/or judge determine the appropriate response. However, that the ABA would approve going ahead and reading the email, gaining an obvious advantage over your opponent because of what was likely an honest mistake on their part, seems to be official permission to NOT play nice in the sandbox.

What do you think? Has the ABA gone too far? Is the ABA merely recognizing and condoning zealous client advocacy? Are these the kinds of ethics that we want to be the baseline for our profession? Can we do better than this? Who will save our souls?

1 comment:

Kelly J. Bozanic said...

"Who will save our souls?" The same one who always does. As fast as the pace might be, no set of rules will be able to impress upon the conscience in the same way that our own moral compass does. The changes must begin with us, as individuals.

I don't know much about this issue, but it seems that the ABA made the decision to give more flexibility rather than have a rule which could be easily broken, but difficult to enforce. As you say, it is understandable that a lawyer reads the first bit to determine the communication is not for him, but at what point has he read too much? It *almost* seems like any line drawing would be arbitrary, and enforcement/sanctions would be even more difficult.

Your post, Alison, illustrates the difficulty of drafting rules which impose morality and conscience on human beings. Ethical standards are important (and necessary), but the morality of the profession must come from the conscience of those who comprise it.