If it were me, on remand, I wouldn't disqualify the law firm here.
A party was employed by a company and alleges wrongful termination. During their employment, they received some emails that were sent to them (deliberately) by the company's attorney. Before leaving the company, they sent those emails to their personal email because they thought they helped establish the company's misconduct. After filing suit, they then turned those emails over to their lawyer, who then produced them during discovery and used them (in part) to advance their case.
The Court of Appeal says that's unethical. That just like you have a duty to return privileged documents that were inadvertently produced by the other side, so too, it holds do lawyers have a duty to return any privileged documents that your client turns over to you. Even ones that were deliberately sent to them by the company during their employment.
Let's assume for now that this holding is correct. Though, as you might well imagine, there are some serious distinctions -- maybe dispositive, maybe not -- between (1) viewing documents that contain information that your client never had any reason to know about and that were obviously accidentally produced to you, as opposed to (2) viewing documents that contain information that your client already knew about and was deliberately and intentionally sent to them. Put that aside. Assume you're the trial court on remand, and the Court of Appeal has now made it clear that an attorney's ethical obligations are the same in both scenarios: return the documents and don't make use of them.
Disqualification is still discretionary in such a setting. And I wouldn't DQ the lawyers here. For multiple reasons, only two of which I'll bother to mention.
First, until today, this wasn't the rule. As the Court of Appeal's opinion admits (in a footnote), Rule 4.4 expressly only applies to inadvertently produced documents, and does not apply to privileged documents that are intentionally disclosed to a client. Could a lawyer nonetheless have potentially anticipated today's holding? Maybe. But the applicable ethical rule was, at a minimum, unclear. That weighs heavily against harming both lawyer and client by disqualifying the lawyer for doing something they thought at the time was permissible.
Second, there's a difference. One the Court of Appeal admits. With inadvertently produced documents, if you review them, you're gaining access to information that you should never have had, so DQing you will effectively remedy that problem by compelling the retention of a new lawyer who won't have access to those documents and that information (since they'll have been returned). By contrast, here, the cat's long out of the bag. The client already got this privileged long ago. They know about it. They are fully aware of what's in the emails. Indeed, they even know the stuff's important, which is why they sent it to their own email in the first place.
Disqualifying the original lawyer doesn't solve the problem. Sure, the client has to get a new lawyer, and now, the client has already returned the emails (and knows full well that if they hide another copy and give them to the lawyer, they'll just be DQ'd again). But the client still knows the stuff. They can testify to it. They can tell whatever they remember to their lawyer, either in writing or (more likely) orally. That stuff is already out, and while there's perhaps a chance the emails themselves aren't going to be formally used, the information is available. At this point, nothing we do is going to put Pandora back in that box.
As Justice Perluss explained three or so years ago, in a different case: "Courts cannot effectively police what a client, after reading or hearing another party’s confidential communications, chooses to tell his or her lawyer. As the cases indicate, attempting to restrict oral disclosures of that sort risks undue interference with candid discussions between the client and counsel; and disqualification would, in any event, be an ineffective remedy because the client might provide the same information to new counsel." For that reason, the proper response to a lawyer deliberately using inadvertently produced privileged documents -- disqualification, in at least some settings -- doesn't really work for me here. At least not in the context raised in this particular litigation.
That said, after today, make sure you know the relevant rule. If you see an obviously privileged email from the other side, even one that was deliberately sent to your client at the time, you may well have an obligation to stop reading it and give it back.
So be careful. No one wants to risk getting disqualified if they can avoid it.
