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Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association


 
 

June 2006      MCLE Test and Answer Sheet

Test Number 149: On the Receiving End

 
 

Instructions for Obtaining MCLE Credit

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education Legal Ethics credit by the State Bar of California in the amount of 1 hour. To apply for credit, please follow the instructions.

1. Study the CLE article.

2. Answer the test questions by marking the appropriate boxes. Each question has only one answer.

3. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:

Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055 

Make checks payable to Los Angeles Lawyer.

4. You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6. For future reference, please retain the CLE test materials returned to you.

 
  Test Sheet
 
 

Mark your answers to the test by clicking next to your choice.  All questions must be answered.  Each question has only one answer. This test is worth 1 hour of ethics credit.*

1. To determine the scope of a lawyer's ethical duties when he or she receives, through the inadvertence of opposing counsel, privileged documents of the opposing side, the California Supreme Court currently has under review the lower court ruling in:
 A. Aerojet-General Corporation v. Transport Indemnity Insurance.
 B. State Compensation Insurance Fund v. WPS, Inc. (State Fund).
 C. Rico v. Mitsubishi Motors Corporation.
 D. All of the above.

2. The American Bar Association Model Rules of Professional Conduct and the ABA Formal Opinions are not controlling in California.
 True.
 False.

3. According to ABA Formal Opinion 94-382, a lawyer who receives an adverse party's privileged or confidential material as a result of a mistake by opposing counsel should:
 A. Promptly notify opposing counsel that the lawyer has the material.
  B. Immediately return the material to opposing counsel without reviewing it and before talking to opposing counsel.
  C. Use the material against the adverse party to further the interests of the lawyer's client.
  D. All of the above.

4. In Aerojet, the court noted that:
  A. The attorney's primary duty was "to protect the interests of his own clients."
  B. An attorney who receives and reviews inadvertently produced documents from the opposing side is subject to automatic disqualification.
  C. "[A] client should not enter the attorney-client relationship fearful that an inadvertent error by its counsel could result in a waiver of privileged information by an adversary who might abuse and discriminate the information with impunity."
  D. None of the above.

5. The ABA has withdrawn its Formal Opinion 05-437.
True.
False.

6. What do Aerojet and State Fund have in common?
 A. Both resulted in the court of appeal affirming the disqualification of a lawyer who received the opposition's privileged documents through the inadvertence of opposing counsel.
 B. Both resulted in the court of appeal reversing a sanctions order against a lawyer who received the opposition's privileged documents through the inadvertence of opposing counsel.
 C. Both resulted in the court of appeal affirming an award of monetary sanctions against a lawyer who received the opposition's privileged documents through the inadvertence of opposing counsel.
 D. None of the above.

7. In State Fund, the court of appeal was highly critical of ABA Formal Opinion 92-368.
 True.
 False.

8. Which competing duties of lawyers did the State Fund court of appeal try to balance?
 A. The duties of loyalty and confidentiality.
 B. The duties to zealously represent the client and to serve the administration of justice.
 C. The duties of candor and to serve the administration of justice.
 D. The duties of loyalty and to avoid conflicting interests.

9. In California, a lawyer's inadvertent production of privileged documents to opposing counsel results in an automatic waiver of the attorney-client privilege for those documents.
 True.
 False.

10. According to the court in State Fund, a lawyer who receives clearly privileged documents from an adversary should stop reading the documents as soon as the privileged nature of the documents becomes apparent.
 True.
 False.

11. The State Fund court distinguished Aerojet because:
 A. The rule in Aerojet conflicted with ABA Formal Opinion 92-368.
 B. Aerojet was bad law and should be overruled.
 C. The information in the inadvertently produced document in Aerojet was not privileged.
 D. The privileged document in Aerojet was not inadvertently produced.

12. The court in State Fund referred to disqualification of the attorney receiving inadvertently produced documents as:
 A. The best remedy.
 B. An improper remedy that is not recognized in California.
 C. A better remedy than monetary sanctions.
 D. A draconian remedy.

13. The court of appeal in Rico relied heavily on Aerojet.
 True.
 False.

14. In Rico, the trial court and the appellate court were highly critical of the receiving attorney because he extensively reviewed the inadvertently produced document and showed it to his expert witnesses.
 True.
 False.

15. Under ABA Model Rule 4.4, the attorney's only duty upon receiving inadvertently produced documents is to promptly disclose receipt of the documents to opposing counsel.
 True.
 False.

16. In a dispute over an inadvertent production of confidential or privileged documents, who has the burden of proving that the production of contested documents was inadvertent?
 A. The producing attorney.
 B. The receiving attorney.
 C. The client.
 D. The issue has not yet been determined.

17. Until the California Supreme Court rules in Rico, the prevailing rule governing the conduct of California lawyers who receive their opponents' privileged documents through the inadvertence of opposing counsel is set forth in:
 A. ABA Model Rule 4.4.
 B. State Fund.
 C. The court of appeal decision in Rico.
 D. Aerojet.

18. The court of appeal in Rico found that inadvertently produced documents protected by the attorney work product doctrine—but not the attorney-client privilege—could be reviewed and used by the receiving attorney without limitation or risk of sanctions.
 True.
 False.

19. While the scope of a receiving attorney's duty is not entirely clear, the most important single thing for the receiving attorney to do when he or she receives possibly privileged documents inadvertently produced by the opposing side is to:
A. Promptly notify opposing counsel in writing of the receipt of the documents.
B. Immediately send the documents back to opposing counsel without reading them.
C. Initiate judicial proceedings to determine how the documents should be handled.
D. Do nothing.

20. In Aerojet and State Fund, the parties that inadvertently produced the documents to the opposing side ended up winning their respective cases at trial.
  True.
  False

Address and Billing
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* The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by the State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.

 


 
   
 

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