Courts have wrestled with various scenarios in which lawyers have viewed an adversary’s privileged documents. Knowledge gained from some wrongdoing (such as inducing an employee to purloin privileged documents) sometimes results in the lawyer’s disqualification, while a lawyer’s innocent viewing (such as reading an inadvertently produced privileged document before realizing it should not have been produced) normally does not result in disqualification.
A Florida court recently dealt with a different scenario. In Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, No. 3D04-2927, 2005 Fla. App. LEXIS 10789 (Fla. Dist Ct. App. July 13, 2005), plaintiff sought production of defendant Lloyd’s privileged documents under the crime-fraud exception. The trial court agreed, and ordered Lloyd’s to produce the documents. When an appellate court quashed the trial court’s order and restored the privilege, Lloyd’s moved to disqualify the plaintiff’s lawyer – who had in the meantime read the privileged documents. The appellate court declined to disqualify the plaintiff’s lawyer, but noted that the trial court could have avoided this problem by putting the privileged documents under seal until its crime fraud ruling had been appealed.
Litigants dealing with courts who are too quick to strip away the privilege should always look for ways to protect the privilege pending an immediate appeal.