Court Officers Protect Client Confidences?
LACBA Update, February 2010
By James Ellis Arden, member, LACBA Professional Responsibility and Ethics Committee; member, Association of Professional Responsibility Lawyers. Arden handles litigation and appeals regarding civil procedure and legal malpractice. The opinions expressed are his own.
In Rico v. Mitsubishi Motors Corp.,1 the California Supreme Court explained the duty of a lawyer who inadvertently comes into possession of privileged material. The defense lawyers in that case, however, claimed the document that found its way into plaintiff’s counsel’s possession had not gotten there inadvertently; rather, they asserted, it had been taken out of their file during a deposition when plaintiff’s counsel had been briefly left alone in the conference room. The court termed plaintiff’s receipt of the defense documents “inadvertent” because evidence showing the document had actually been taken from the defense was lacking.2
The legal protection afforded client confidences is not absolute in any legal or practical sense. We cannot guarantee the security of our client files and secrets; we can only take reasonable precautions.3 So, for instance, we are not required to encrypt e-mail when communicating with clients because e-mail poses no greater risk of interception and disclosure than regular mail, phones, or faxes.4
Many of us don’t even lock our file cabinets when we leave the office. (How many of us even know where to find the file cabinet keys?) We trust our office mates. We trust our landlords. If we have them, we trust the people who clean our offices.
If not during depositions, we trust other counsel when we’re in court. We leave briefcases behind when we walk forward to do business, assuming that no one will move our cheese while our backs are turned. We certainly place no lesser trust in the judicial and other court officers and personnel.
In court, we don’t usually worry about people rifling through our files while our backs are turned because we assume that sharp-eyed court officers are on duty maintaining a vigil and preventing anything untoward from happening. We are even more confident when the judge is sitting right there on the bench, actively surveying the courtroom. And in courtrooms where bailiffs are on duty, it is not uncommon to see them wandering around looking for potential trouble. So one of the things of which we’re certain is that while we’re standing up there at the podium, arguing on behalf of our clients, our files sitting nearby on the counsel table are perfectly safe.
However, as former U.S. President Richard M. Nixon once said, “Sure there are dishonest men in local government. But there are dishonest men in national government, too.”
Check out the video from a hearing in Arizona called “Simple Justice—The Poisoned Water of Maricopa County,” playing at Internet sites all over town.5 The video depicts an amazing scene recorded on courtroom video during a hearing in a criminal case. As it opens, a defense attorney is speaking to the judge from a podium, her client in jail stripes standing beside her. Behind them, off to her right, are two prosecuting attorneys, and right behind them, an armed, uniformed bailiff.
No one is moving around, but the bailiff, who had been standing behind the prosecutors, walks over behind the defendant and his attorney, and then he looks down, intensely staring at something on the defense counsel’s table. He looks up, waves over another bailiff, and reaches down and pulls a document out of the defense attorney’s file!6
The defense attorney is all-the-while addressing the judge and has no idea what is going on right behind her–but her client, the defendant, notices. You then see the first deputy hand the document off to the second one, who goes off to copy the document as instructed by the first deputy. At that point, the defense attorney realizes that the deputy took something from her file and asks to approach the bench. After going back on the record briefly, the defendant’s hearing is continued.
The rest of the story is no less amazing than the video. A hearing on the deputy’s conduct results in an order for him to apologize or be jailed for contempt. The deputy, who claimed he took the document from counsel’s file because he saw some words indicating a crime might be committed, refused to apologize and reported to jail. Maricopa County Sheriff Joe Arpaio called his deputy a “political prisoner.” The next day, after nearly 20 officers called in sick, a bomb threat was made, shutting down the court. (Contemporaneously, Sheriff Arpaio sued the county supervisors, judges, and several lawyers for racketeering. His request for the presiding judge to be photographed and fingerprinted was attached to the complaint. Really.)
It is astounding that a deputy’s ignorance of the import of attorney-client privilege and the work product doctrine has played any part in the crippling of Maricopa County’s government. And though it might be hard to imagine this happening anywhere else, so it was in Maricopa County until recently. Maybe more courtroom training would help. Maybe not. Better keep tabs on your files even when in court than risk bringing down the government.
1 Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807, 811-12 (2007).
2 See Diane Karpman, New meaning of ‘inadvertent receipt’ given, Cal. Bar J., (Jan. 2008).
3 The failure to take reasonable precautions to assure confidentiality of information (e.g., having a “confidential” conversation in the known presence of third persons not reasonably necessary to the purpose of the privileged conversation) may show consent to its disclosure. People v. Poulin, 27 Cal. App. 3d 54, 64 (1972) (statement to lawyer during trial overheard by bailiff); People v. Gomez, 134 Cal. App. 3d 874, 879 (1982) (threat to wife in presence of others. “[T]he fact that the communication was made under circumstances where others could easily overhear is a strong indication that the communication was not intended to be confidential and is, therefore, unprivileged.” (See Evid. Code §917, Comment.)).
4 A.B.A. Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 99-413; Los Angeles County Bar Assn, Prof’l Responsibility & Ethics Comm., Formal Op. No. 514; Orange County Bar Assn, Professionalism and Ethics Comm., Formal Op. 97-002 (use of encrypted e-mail encouraged, not required).
5 For instance, you can try http://current.com/items/91580878_deputy-takes-documents-from-defense-attorney.htm, or just do a search for “deputy takes documents from attorney.”
6 The Arizona Supreme Court ironically opined that “an attorney or law firm is obligated to take competent and reasonable steps to assure that the client’s confidences are not disclosed to third parties through theft or inadvertence.” State Bar of Ariz., Comm. on the Rules of Prof’l Conduct, Formal Op. 05-04.