Taking Advantage Of Inadvertant Disclosure Of Opposing Counsel’s Notes

Howard Bashman’s How Appealing blog has a link to an article that reports on an interesting appellate argument in a California case where the plaintiff’s attorney received the notes of a defense lawyer (exactly how is in dispute but the trial court found no misconduct) and used the notes at trial without providing advance notice to the defense. Each side relies on prior California cases in support of its position. The ethics question is whether the duty to advocate on behalf of a client is either trumped or modified by a duty of fair dealing with opposing counsel. The decision in the case will likely provide a teaching tool for ethics professors. (Mike Frisch)