While representing a client in civil litigation, you are conducting depositions in a conference room at your office. Opposing counsel asks to use an empty office during a break to return phone calls, and you oblige. After the depositions are finished for the day, you realize that your opposing counsel left a document in the empty office, and after glancing at it, you realize it is a status memorandum to the insurance adjuster on the case. The memorandum contains information which would be extremely helpful to your pursuit of the case. What should you do?

The Georgia Rules of Professional Conduct do not prohibit an attorney from reading the memo. While some states do bar a lawyer from engaging in this type of activity, Georgia ethical rules do not prohibit reading or using such a document, and the rules do not require that you inform opposing counsel that you have read it. If you read the memo and use the information, it would help you pursue the case on behalf of your client. The failure to do so, therefore, would put your client in a worse position than she would be in if you read the memo. Do you thus have a duty to read and use the memo? Would the failure to read (and use) the memo constitute substandard representation, giving rise to a claim for legal malpractice? How about the obligation of professionalism? Does reading a memo, which you know is private, violate the concepts of professionalism? Should you harm your client’s interests in the name of professionalism?

Ethics. Professionalism. Legal Malpractice. Lawyers face dilemmas such as these in their daily practice. In this blog, I intend to discuss common issues facing lawyers. This will be a venue for discussion of the tough issues. The easy issues don’t need to be addressed. I will not have a public comments section on the blog, but I do invite comments sent by email, and I will post comments of readers who have excellent contributions to make.