NC Business Court Decision says Email "Conflicts out" Lawyer
NC Lawyers Weekly is reporting a recent business court decision by Judge Tennille in the matter of Chemcraft Holdings Corporation v. Shayba (North Carolina Lawyers Weekly No. 06-15-1115, 10 pages) where the Judge disqualified counsel for a prty due to a conflict of interest arising out of email messages.
You can read the full story here, at NC Lawyers Weekly.
The Basic Facts
Without getting all caught up in too much detail, here is what happened. Lawyer A was contacted by a potential client and was faxed some documents. After reviewing those documents, that lawyer declined the case but tried to refer the potential client to another lawyer, Lawyer B. Lawyer A emailed Lawyer B a quick email and attached the previously faxed documents to the email. The attachments contained attorney client privileged material, summaries of contacts between the adverse parties, and documents analyzing litigation strategies.
Lawyer B read the email but did not open the attachments. Sometime later, Lawyer B was hired by the opposing party. The first party opposed his appearance in the case and filed a grievance as well as a motion to disqualify.
Judge Tenille say Email = Snail Mail
While the actual facts of the case were disputed, Judge Tenille said that even if Lawyer B did not open the attachments, the lawyer was still disqualified because of conflict of interest under ethics Rule 1.18.
Judge Tenille found that:
- Lawyer B had a duty to read the email and the attachments
- Lawyer B had NOT violated any ethics rules
- Lawyer B has a duty to not reveal information learned in a "consultation"
- The action gave an "appearance of impropriety"
- Lawyer B should be disqualified under the "significant harm" standard
Nothing New Here
I think Judge Tenille made the correct decision, probably. I agree that email and snail mail are basically the same thing. There is no real difference between Lawyer B receiving a cover letter that says "This client may contact you and I've enclosed three sensitive documents for your review" and receiving the email.
Taken a step further, this is no different than receiving a phone call, listening to the potential client describe the facts of the case, and then declining representation. This happens to family law lawyers all of the time, and so they use their staff to carefully screen calls to avoid "pre-emptory" disqualification.
I think the ruling might have been different if the email had come directly from the client and had been unsolicited by Attorney B. There are clients out there that "mass email" questions to lawyers. If this happens, the best thing is to ignore the email and delete it. Also, if Attorney B had sent an email back to the client, saying, "I have not opened the attachments and I can not represent you" then I think Attorney B might have been allowed to stay in the case.
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