Lawyer Had Duty to Return Opponent’s Notes, Court Rules
The California Supreme Court has ruled a lawyer should be tossed from a pending case because he copied, distributed and used notes of an opposing lawyer’s meeting with expert witnesses.
The court said the document was attorney work product and should not have been used, the Recorder reports.
“An attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged,” the court wrote in its opinion (PDF). “Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.”
The dispute centers on actions by lawyer Raymond Johnson of El Segundo, Calif., who discovered he had the notes at the end of a pretrial deposition in a rollover case, ABAJournal.com noted in a prior post. Johnson later used the notes to question an opposing expert witness who seemed to contradict positions chronicled in the notes. Johnson claims a court reporter gave him the notes during a deposition, while his opponent claims they were taken from a lawyer’s briefcase.
A trial court, citing a 1992 ABA ethics opinion, found that use of the notes was an ethical breach and disqualified Johnson from the case. The California Supreme Court affirmed.
The court wrote that Johnson’s use of the notes “undermined the defense experts’ opinions and placed defendants at a great disadvantage. Without disqualification of plaintiffs’ counsel and their experts, the damage caused by Johnson’s use and dissemination of the notes was irreversible.”
