Receipt of Confidential Mediation Statement Does Not Require Lawyers to Be Disqualified

By Joan C. Rogers  


A lawyer's cursory review of a confidential mediation statement that an opponent in an estate dispute inadvertently emailed to her and a colleague does not require their firm's disqualification in the case, the Florida District Court of Appeal, Third District, decided Aug. 22 (Moriber v. Dreiling, Fla. Dist. Ct. App. 3d Dist., No. 3D12-300, 8/22/12).

The court credited the lawyer's assertion that she did not realize the statement was confidential before skimming it, and emphasized that she had all copies of it destroyed immediately upon learning that the document had been sent by mistake. The recipients' affidavits documenting their minimal handling and review of the statement eliminated any possibility that the lawyers' firm obtained an unfair informational advantage in the case, Judge Leslie B. Rothenberg found.

Wrong Document Attached.

According to Rothenberg, “the events that transpired in this case are not attributable to unethical conduct” but rather “illustrate some of the adverse consequences resulting from the injection of technology into today's modern and busy law practice.”

During litigation among siblings over their mother's estate, the plaintiff's counsel asked his assistant to serve a summary judgment motion by emailing a copy to the defendants' counsel, the Heller Waldman law firm, and mailing a hard copy to the firm.

After emailing the motion, the assistant realized that the email did not mention that she had also mailed a copy. She sent a follow-up email noting that she had sent a hard copy. Unfortunately, the assistant inadvertently attached a confidential mediation statement to the email rather than the summary judgment motion as she had intended.

Receipt of the confidential document did not yield any possibility of an unfair informational advantage.
Judge Leslie B. Rothenberg

The emails were sent to two Heller Waldman partners, Glen Waldman and Eleanor Barnett, as well as their assistant. Waldman and the assistant never reviewed the statement, but Barnett did.

Barnett was out of town when she received the emails on her cell phone, and she did not open them. When she returned to the office, Barnett instructed her assistant to print out the summary judgment motion and “whatever came in while I was out related to this cause.” Barnett's assistant printed out a copy of the motion and the mediation statement, and forwarded the emails and their attachments to the clients.

Barnett read the summary judgment motion and began to “skim” the mediation statement after checking to confirm that it did not contain a confidentiality notice. She assumed it was sent on purpose, Rothenberg explained. Later that day Barnett sent opposing counsel an email about a scheduling issue mentioned in the mediation statement.

Upon getting that email, opposing counsel realized the mistake and requested that all copies of the statement be destroyed. Barnett immediately did so, Rothenberg said.

Akin to Position Paper.

The other side moved for disqualification anyway, arguing that the Heller Waldman lawyers violated Florida Rule of Professional Conduct 4-4.4(b). That rule dictates that “A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”

The trial court appointed a special master, who found that the mediation statement was essentially a position paper stating the obvious, well-established positions of each side in the dispute. According to the special master, the statement outlined uncontested facts, commented on the obvious motivations of the parties, and tracked the legal issues, without signaling any weakness in the plaintiff's case or indicating anything that would give the defendants a tactical, strategic, or legal advantage.

The trial court accepted the special master's recommendation and denied the motion to disqualify.

Test for Disqualification.

The appellate court affirmed. Drawing on Florida case law, the court described the following test for disqualification based on inadvertent disclosure of confidential information:  

The receipt of an inadvertent disclosure warrants disqualification when the movant establishes that: (1) the inadvertently disclosed information is protected, either by privilege or confidentiality; and (2) there is a “possibility” that the receiving party has obtained an “unfair” “informational advantage” as a result of the inadvertent disclosure.  



These two elements are interrelated, the court said, because only an inadvertent disclosure of privileged or confidential information can yield an “unfair” informational advantage. The fact that inadvertently disclosed information is privileged or confidential, standing alone, does not automatically warrant disqualification, Rothenberg said.

Describing the second element as broader than the first, Rothenberg said that as part of the inquiry courts must look not only to the content of the inadvertent disclosure, but also to the actions the receiving lawyers took upon receiving the material.

Rothenberg gave two reasons why courts must focus on the actions of the recipients. First, she explained, it would be impossible to evaluate the possibility of an unfair advantage without knowing how and to what extent the lawyers reviewed, copied, or disseminated the inadvertently disclosed information.

By way of example, she noted that in Atlas Air v. Greenberg Traurig PA, 997 So. 2d 1117, 24 Law. Man. Prof. Conduct 515 (Fla. Dist. Ct. App. 2008), an attorney asserted attorney-client privilege and work product protection when she was asked during her deposition whether the privileged materials were provided to other attorneys in the firm. The attorney's refusal to answer made it impossible to determine the extent of the tactical advantage that the firm may have gained, Rothenberg noted.

Second, Rothenberg said, the actions of the receiving attorneys shed light on whether any informational advantage was received “unfairly,” as illustrated in Abamar Housing & Dev. Inc. v. Lisa Daly Lady Decor Inc., 724 So. 2d 572 (Fla. Dist. Ct. App. 1998). The court in that case focused on the attorneys' recalcitrance in rectifying the inadvertent disclosure and established that a lawyer who complies with the Rules of Professional Conduct upon receiving an inadvertent disclosure will not be subject to disqualification, Rothenberg said.

No Unfair Advantage.

The court agreed with the special master that nothing within the mediation statement created a possibility that the defendants gained the upper hand by receiving it.

Moreover, the court found that the brevity of the Heller Waldman attorneys' exposure to the statement, and the minimal degree to which they handled, reviewed, and disseminated it, showed there was no possibility that the firm gained an unfair informational advantage.

The trial court correctly rejected the plaintiff's argument that the lawyers violated Rule 4-4.4(b), the court added. The record supported findings that Barnett did not know the mediation statement was confidential and that this lack of knowledge was reasonable under the circumstances, Rothenberg said.

There is nothing inherent about a mediation statement that would automatically alert a recipient to its confidential nature, Rothenberg stated. It is not uncommon, she said, for a party to send a mediation statement to opposing counsel, and trial judges sometimes mandate this production.

The court also emphasized that the mediation statement did not indicate in a prominent fashion that it was to be deemed confidential. Although the first paragraph contained an admonition about the confidentiality of the statement, Rothenberg credited Barnett's assertion that she did not read that portion. “Because the admonition was not placed in bold, underlined, italicized, capitalized, or otherwise designed to stand out to a reader who was merely skimming the document, it was reasonable for the trial court to conclude that Ms. Barnett overlooked the admonition,” Rothenberg said.

In addition, the court noted that the lawyers were cooperative, rather than recalcitrant, in rectifying the inadvertent disclosure. Barnett immediately had all copies of the mediation statement destroyed when she was notified that it was confidential, Rothenberg reiterated.

Gary Bagliebter and Rachel H. LeBlanc of Shutts & Bowen, Ft. Lauderdale, Fla., represented the plaintiff.

Glen H. Waldman of Heller Waldman, Coconut Grove, Fla., represented the defendants.

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