Untangling Ethics Theory from Attorney Conduct Rules: The Case of Inadvertent Disclosures
George Mason Law Review
The article addresses a common question: What should the rules require lawyers to do when they receive inadvertently disclosed privileged information from an adversary? Many commentators have incorrectly assumed that ethics theories, such as the zealous advocacy model, can tell us the answer. In fact, existing ethics theories should serve a more limited role: they should only tell lawyers how to behave when the rules do not offer clear guidance. To correct this mistaken reliance on conventional ethics theories as the primary generators of the positive law, this article develops an alternative model. The model suggests that, when creating professional regulations, we should draw on a wider range of values, including not only zealous advocacy, but also justice, morality, professionalism, consumer protection, consistency with other law, and the numerous considerations that go into lawmaking more generally, such as the reduction of contracting costs. By identifying and then weighing these various factors, this article concludes that the profession can provide a better framework for the development of professional regulations in general and a clearer answer to the inadvertent disclosure issue in particular. Through the creation of a framework of this sort, it becomes apparent that we need to make two significant revisions to the Model Rule in this area, which at present only obligates recipients of inadvertent disclosures to notify senders about their mistakes. First, the Rule should be revised to require lawyers to return inadvertent disclosures when the senders request such returns, but only if the senders make the request before the recipients have reviewed the documents. Second, in those cases where senders do not discover their own mistakes, the Rule should not require recipients to bring those mistakes to the senders' attention. The article contends that these proposed revisions are consistent with the wide range of policy rationales that should underlie professional rulemaking.
13 GEO. MASON L. REV. 767 (2005)
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