Rules governing attorney conduct in cases of inadvertent disclosure of privileged or protected materials must strike an appropriate balance between two competing bedrocks of American jurisprudence: an attorney’s ethical duty to represent her client zealously, and the evidentiary shield from discovery afforded privileged or protected documents. The California Supreme Court’s holding in Rico v. Mitsubishi Motors Corp. represents California’s response to this balancing act, harmonizing two conflicting precedents governing the inadvertent disclosure of privileged documents—one favoring an attorney’s duty of zealous representation, and the other supporting an attorney’s evidentiary privileges and protections. The Rico court, consistent with ethical standards adopted in states throughout the nation, held that an attorney “who receives privileged documents through inadvertence . . . may not read a document any more closely than is necessary to ascertain that it is privileged” and must notify the disclosing attorney immediately in order to “resolve the situation.” The court’s decision, however, does not entirely foreclose a receiving attorney, under limited circumstances, from using information from an inadvertently disclosed document to her client’s advantage. Nevertheless, while Rico shed much needed light on ethical standards governing attorney conduct in cases of inadvertent disclosure, the Rico rule highlights a fundamental problem with the state’s work product protection scheme: in conjunction with California’s limited crime-fraud exception for attorney work product protection, the Rico rule leaves all civil actions in California vulnerable to criminal or fraudulent conduct inadvertently disclosed by counsel during the course of litigation.
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