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Disqualification of attorney who comes into possession of adversaries' notes

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A lawyer who receives the opposing counsel's work product must stop reading the document upon realizing its privileged nature, and must immediately notify opposing counsel to try to resolve the situation, the California Supreme Court announced on Dec. 13 (Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07, aff'g 20 Law. Man. Prof. Conduct 109 ).

In this case, both the attorneys for the plaintiffs and their experts in a vehicle rollover case were permanently disqualified.

The 12-page document in question summarized, in dialogue format, a meeting between Mitsubishi's defense counsel and defense experts. One of the defense lawyers, James Yukevich, had asked a Mitsubishi case manager to take notes at the meeting; Yukevich later edited those notes and added his own handwritten comments.

After a deposition ended the plaintiffs' attorney, Raymond Johnson, somehow wound up with this document. Johnson later said that a court reporter accidentally gave him the document, whereas Yukevich contended that the document was taken from his files when Johnson temporarily "commandeered" the deposition room for a personal meeting.

Johnson made a copy of the document for himself before returning the original to the court reporter. He studied the document, sent copies of it to the plaintiffs' experts and the other lawyers for the plaintiffs, and used it to impeach a defense expert during a deposition.

Upon realizing that Johnson had a copy of his notes, Yukevich demanded that all copies be returned, and moved to disqualify Johnson and the experts who had seen the documents. The California Supreme Court has now happily sanctioned Johnson's misfeasance.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.