Moving Beyond Zeal in the Rulemaking Process: A Reply to Professor Monroe Freedman
George Mason Law Review
Professor Freedman has written a Response to my recent article on ethics issues associated with the inadvertent disclosure of privilege documents. In that Response, http://ssrn.com/abstract=923587, Professor Freedman reviews the many reasons that lawyers should pursue a client's cause with zeal, and he explains how those reasons apply to the difficult problem of misdirected privileged documents. He concludes that, unless clients specify otherwise after getting advice from counsel, lawyers should always take advantage of an opponent's inadvertent disclosures. In this Reply, I contend that Professor Freedman's proposed rule places too much emphasis on zealous advocacy. The problem is that Professor Freedman assumes that if lawyers should act zealously in the event of ambiguous ethics rules, we should also want rulemakers to focus heavily on zeal when crafting the rule regarding misdirected documents. In fact, even if we assume that lawyers should resolve any ambiguities in the rules in favor of zeal, we should still want rulemakers to examine a broader range of public policy considerations when crafting the rules themselves. Because Professor Freedman does not discuss this distinction, he does not fully acknowledge several values other than zealous advocacy that we should consider when developing a rule on misdirected documents. Those other values suggest that the rule should require lawyers to return inadvertent disclosures, but only when senders discover their mistakes before recipients have reviewed the relevant documents.
14 Geo. Mason L. Rev. 185 (2006)