Page 17

The SDCBA recently filed an Amicus Brief in Ardon v. City of Los Angeles. Read the press release at www.sdcba.org/amicusbriefrelease. The full Amicus Brief is available to read at www.sdcba.org/amicusbrief2015.

A

court ruling affecting the ability of lawyers to keep confidential documents from inadvertently being made public and used in court could have such profound repercussions that the San Diego County Bar Association has stepped into the fray. In what appears to be an unprecedented step, the Bar Association has filed an amicus brief with the California Supreme Court supporting the City of Los Angeles in a case in which a lower court said a lawyer suing the city on behalf of a taxpayer could use privileged documents which a clerk mistakenly released in response to a Public Records Act request. “That really strikes at the heart of our (legal) system,” said Jon Williams, Bar Association immediate past president. “The issue is bigger than these parties. The issue is of statewide significance.” Williams said the Bar Association decided to file the amicus brief in part because the association’s Legal Ethics Committee had already been researching and discussing similar issues. “It just seemed like it was an opportunity for us to offer some guidance to the high court on an important issue,” Williams said. “This is an area where we have developed a great amount of expertise from our Legal Ethics Committee.” Neither Williams nor other Bar Association members can remember another instance in which the association has filed an amicus brief on a case before the Supreme Court. Nevertheless, Williams said “I don’t see this as part of a larger tend.” “What it demonstrates is that we are very thoughtful about getting involved in these issues,” Williams said. “We have certain expertise and when issues intersect with that expertise, we’ll get involved.” In this instance, the court ruling “seemed like an aberrant result to us,” he said. “This one strikes at the heart of the practice of law, if you think about it, and what lawyers do on a daily basis,” Williams said. “It’s our position they just got it wrong.”

FILED: AMICUS BRIEF The SDCBA provides perspective on an attorneys's ethical obligation when receiving confidential documents By Ray Huard

A Los Angeles Superior Court judge in August granted tentative approval to the settlement of the underlying class action suit involving a city utility tax. The city agreed to pay up to $92.5 million in refunds to Los Angeles residents who paid the tax between October 2005 and March 2008. The 2nd District Court of Appeal, Division Six, previously upheld the lower court ruling that documents mistakenly disclosed during through the Public Records Act request did not have to be returned and could be used in trial.

“This [case] strikes at the heart of the practice of law and what lawyers do on a daily basis. It’s our position they just got it wrong.” – Jon Williams The trial court also ruled that the lawyer who handled the lawsuit and inadvertently received the privileged documents did not have to be disqualified for not returning them. The state Supreme Court determined that the privilege issue was so important that it took up the case despite the tentative settlement between the city and the man who filed the class action lawsuit, Estuardo Ardon. “That is part of the review process of the Supreme Court,” Williams said. “They can take up a case even if it’s settled as to the parties because it impacts the law throughout the state and it impacts other litigants and other folks.” The Supreme Court, on its website, said the Ardon case raises two issues. “Does inadvertent disclosure of attorney

work product and privileged documents in response to a Public Records Act request waive those privileges and protections?” “Should an attorney who received the documents be disqualified because she examined them and refused to return them?” The Bar Association brief doesn’t deal with the question of whether a lawyer should be disqualified for inadvertently receiving and not returning privileged documents but focuses on what lawyers should do when they receive such information. “Essentially, the debate involved an attorney’s obligations when confronted with a situation where they have come to possess or have access to publicly available information that was clearly intended to be confidential information,” said Patrick Kearns, chairman of the Legal Ethics Committee. “These are open questions for practicing attorneys that need guidance and need bright line rules on how to handle these things,” Kearns said. Edward McIntyre, who drafted the amicus brief with Leah Strickland, said that the Supreme Court decision to review the Ardon case coincided with work being done by the Bar Association’s Legal Ethics Committee concerning attorney-client privilege and work product privilege. “The Legal Ethics Committee of the Bar Association has been looking at the issue of the ethical duties of a lawyer who received confidential information from the other side in a variety of circumstances,” McIntyre said. “One of the functions of the Ethics Committee is to address issues, and, if worthwhile, to craft opinions if it would be useful to practitioners.” That was the case in this instance. “We were working on an opinion for better than a year, starting in 2013, all through 2014,” McIntyre said. “As soon as I saw what the issues were in the Ardon case, it was pretty clear that the court, in one way or another, was going to address some of the issues that were in the opinion.” At that point, it seems superfluous for the September/October 2015 SAN DIEGO LAWYER 17

San Diego Lawyer September/October 2015  

Inside this Issue: Embracing Diversity & Closing the Gap; 100 Years of Women Serving on the Jury; SDCBA Files Amicus Brief; Jury Tweets: Dos...

San Diego Lawyer September/October 2015  

Inside this Issue: Embracing Diversity & Closing the Gap; 100 Years of Women Serving on the Jury; SDCBA Files Amicus Brief; Jury Tweets: Dos...