Bill is a senior paralegal with the law firm of Matheson & Gilbert, which mainly focuses on commercial transactions and litigation. Bill is a longtime employee of the firm and has been assigned to work on the Miller v. Cohen lawsuit. Sandra Jackson, a partner in the firm, represents Joel Cohen, one of the defendants in the case. George Wilson, an attorney at the Lewiston firm, represents Phil Philby, another defendant in the case. Bill gets a telephone call from Phil Philby, who asks Bill to e-mail a copy of a draft motion to dismiss that Sandra is working on in the case. Bill knows that Joel Cohen may have claim against Philby and that Sandra wants to file a cross-claim against Philby. Can Bill e-mail a copy of the motion without Sandra’s permission?
Explanation
Answer: D - Bill cannot e-mail the draft without Sandra’s permission because George Wilson and Sandra Jackson represent different clients, and Sandra’s client may have a claim against George’s client. Here, the test-taker must recognize both client confidentiality and the work product discovery rule and the attorney-client privilege. Sandra Jackson owes a duty of confidentiality to Joel Cohen, and if Bill sends the draft motion, doing so would breach Jackson’s duty of confidentiality. Since the litigation has already started, sending the draft motion would reveal Jackson’s mental impressions about her client’s case. Because it’s likely that Jackson and Cohen have discussed the draft motion, sending the draft would also breach the attorney-client privilege. It is irrelevant that Cohen and Philby are both defendants (Answer A). Use of e-mail is not a violation of the confidentiality rule (Answer B). Philby’s attorney-client privilege is not at issue, and Wilson could not waive it on behalf of his client (Answer C).
