The ABA Journal is reporting today that a New Jersey appeals court has ruled that a lawyer can’t continue to represent a medical malpractice plaintiff after reading hospital documents sent by an anonymous source. The court held that the attorney's conduct violated Rule 4.4, which I don't find very convincing.
Here is the story in a nutshell: New Jersey has something called the Patient Safety Act, which requires hospitals to report adverse events. In order to "encourage health care
workers to candidly disclose their observations and concerns, and
promote self-critical evaluation by professional and administrative
staff," the Act states that any documents generated as part of the process regulated by the Act will not be subject to discovery or be admissible as evidence or otherwise disclosed in
any civil, criminal, or administrative action or proceeding.
As he was preparing his case on behalf of a medical malpractice plaintiff, the attorney for the plaintiff received an envelope that contained documents that appeared to have been prepared as part of the process regulated by the Act. The envelope did not have any information about who sent the documents. He read and kept the documents and did not disclose the fact that he had them to the defendant's lawyers until he disclosed he had them as part of discovery. When the defendant found out the lawyer had the documents, it requested that the attorney for the plaintiff be disqualified (among other things). The court held that the attorney should be disqualified and the appeals court affirmed.
I understand that the lawyer was not supposed to have access to the document, and that the document would not be admissible in court. But I am bothered by the court's interpretation that the lawyer's conduct was a violation of rule 4.4, which states that "[a] lawyer who receives a document and has reasonable cause to believe
that the document was inadvertently sent shall not read the document or,
if he or she has begun to do so, shall stop reading the document,
properly notify the sender, and return the document to the sender."
This rule imposes more duties than the current Model Rule 4.4, which only requires that the attorney notify the sender, but I think both rules are based on the same underlying circumstances. As the comment to Model Rule 4.4 makes clear, the rule is meant to apply when the document in question is sent by one of the parties in a case or one of their attorneys.
In this case, however, the document was not sent by the defendant nor its attorney, and it is pretty clear it was not sent "inadvertently" either. Also, the duties imposed by the rule are to notify the sender and to return the document to the sender. How is the lawyer to comply with these duties if the lawyer does not know who the sender is?
My worry is that the rule could be interpreted too broadly to impose a duty (enforceable by disqualification) that is not what the rule is about. What if the lawyer receives a smoking gun document from an unknown source, a whistleblower, as in Fisons? Would the lawyer have a duty to not read the document and contact the other side, etc? Should lawyers be disqualified any time they get anonymous information of this sort?
The case is Jablow v Wagner and you can read the opinion here.