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?