Risk Update

Law Firm Technology Risk — Lateral Leaver Confidentiality Kerfuffle, Inadvertent Discovery Disclosure Doesn’t Disqualify #Metadata

Posted Dan Bressler

Careful with that administrator password, Eugene: “Connecticut lawyer faces disciplinary charges after firm network administrator allegedly accessed departing employee’s personal emails” —

  • “According to the Presentment, in February 2021, the lawyer ordered his network administrator to improperly access the office computer of a departing associate to find his communications with the new law firm which hired him. The network administrator ‘retrieved, copied and downloaded personal emails’ from the associate’s personal gmail account. The emails were downloaded onto the law firm’s server.”
  • “A lawyer from the associate’s new law firm contacted the lawyer to determine whether he wanted to send a joint letter to the clients. The lawyer is alleged to have responded with an email stating that the clients belonged to his firm and ‘I will say in unambiguous terms that should you proceed in this manner, we will not hesitate to sue Alex personally and your firm, as well as file grievances. If you act on your email and participate, we will include you and your firm in those grievances and lawsuits … By virtue of your email, you have in essence admitted to conspiring to commit a crime and exposed yourself and Alex to civil damages and potential criminal liability … Again, the clients are my firm’s, not Alex’s. DO NOT CONTACT THEM IN ANY MANNER.'”
  • “The Presentment alleges, inter alia, that the lawyer committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, used methods of obtaining evidence that violated the lawyer’s legal rights, engaged in improper solicitation, and engaged in conduct prejudicial to the administration of justice..”
  • “Bottom line: This lawyer is alleged to have, inter alia, ordered his network administrator to improperly access a departing lawyer’s personal email account and committed a criminal act that reflected adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, used methods of obtaining evidence that violated the lawyer’s legal rights, engaged in improper solicitation, and engaged in conduct prejudicial to the administration of justice. He partially admitted to misconduct and the court will determine whether the admission will be accepted and, if so, what discipline will be imposed.”

“IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE. No. 38363-6-III” —

  • “Electronically stored information is ubiquitous in contemporary law practice. When an attorney responds to a discovery request by sending electronically stored information to opposing counsel, care must be taken to avoid inadvertent disclosure of embedded information that might be subject to a claim of privilege.”
  • “Nevertheless, if an inadvertent disclosure happens, the receiving attorney must take corrective action, including notifying the sender. Sanctions must be imposed if an attorney fails to take corrective action, with the most severe sanction being disqualification.”
  • “Counsel for Lloyd & Williams, LLC, and its members, Dewight Hall Jr. and Tod W. Wilmoth (collectively L&W), inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel that had been partially redacted but not scrubbed of embedded text. Instead of notifying counsel for L&W and sequestering the documents, opposing counsel cited portions of the embedded text in support of a summary judgment motion. This prompted L&W to move for opposing counsel’s disqualification.”
  • “The failure of opposing counsel to take corrective action violated rules of civil procedure and professional conduct. Nevertheless, the trial court ruled disqualification was not an appropriate sanction because counsel’s rule violations were not intentional. Having accepted discretionary review of this matter, we find no abuse of discretion in the trial court’s choice of sanction. Accordingly, we affirm.”
  • “Ms. Urness denied any wrongdoing. She provided various explanations for her conduct, including assertions that she did not understand metadata and that she had received at least some of the information from a third party.”
  • “Ms. Urness was adamant she had not tried to uncover privileged information, but had simply performed a word search of the discovery materials.”
  • “The court opined that some of Ms. Urness’s explanations were suspicious but credited Ms. Urness’s assertion that she did not knowingly search through privileged material. Furthermore, the superior court acknowledged that disqualification is an extraordinary remedy, imposed only in extremely rare circumstances. The court fashioned alternate remedies: it ordered Ms. Urness to destroy the files, promised to banish the e-mail excerpts from the court’s decision-making, and instructed the parties to not mention the excerpts again.”
  • “The only material change caused by Ms. Urness’s rule violations is that L&W’s redacted materials have been made public. However, L&W has not articulated any reason why this revelation is prejudicial.”