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Bar Journal - June 1, 1999

The Ethics of Ill-Gotten Gains: If It's Too Good to be True, Maybe It's Too Good


Picture this: you represent a Manager who was not pleased when her employer asked her to resign her position. Instead of stepping down, the Manager decided to challenge her employer's decision. She consulted with counsel. The lawyer advised her to create a chronological account of her employment history with the organization, detailing negative aspects of the employment situation. The Manager diligently worked on this "Diary" for months, provided it to counsel to review, and received feedback. The Manager then expended additional time and effort on this Diary. She showed it to family members and close confidants to refine it and marshall the evidence.1 

The Manager's attorney then used the 27-page Diary as the basis for a complaint that she prepared on the Manager's behalf against the employer. Subsequently, after seeing the draft complaint, the employer agreed to resolve the matter short of litigation, by agreeing, among other things, to keep the Manager employed under a written employment contract. The Manager is content and goes about her business.

One of the Manager's subordinates simultaneously was not happy with the employer. The subordinate/plaintiff (hereinafter "Plaintiff") believes the employer is discriminating against her in violation of federal law. The Plaintiff retains counsel to represent her in a lawsuit against the same employer.

The employer does not produce the Manager's Diary in the course of discovery. Counsel for the employer believes the Diary was not specifically requested in Plaintiff's document request. Moreover, the document was created at the direction of counsel and in anticipation of litigation against the Manager's employer. It is also an attorney-client privileged communication.2  The Plaintiff somehow learns that the Diary exists, and she desperately wants to get her hands on it, because it allegedly contains a wealth of criticism concerning the employer's activities.

One day, Plaintiff's counsel receives a large manila envelope in the mail, with a return address of "Your Fairy Godmother." In the envelope, with no note or accompanying correspondence, is what appears to be the Diary or at least substantial portions of it. What are the obligations of Plaintiff's counsel in these circumstances? Should she send the document in an anonymous envelope to the attorney representing the employer to see if the attorney then produces it in discovery? Should she contact the Manager's attorney and advise her that she has the Diary in her posses-
sion? Should she file the Diary in open court with a motion to compel the remainder of the Diary? Should she return it unread to the Manager's attorney?

Focusing on the issues of law, has the work-product immunity been waived? What is the appropriate balance between fairness and respect for the privilege and confidentiality of the opposing party, and an attorney's obligations to zealously advocate for a client? How should the courts handle the issue when an attorney acts in derogation of the guidance provided by the various professional organizations and tribunals charged with defining ethical responsibility?

The purpose of this article is to advocate that such inadvertent disclosure is not enough to waive any privilege that attaches to the Diary.3  In this age of professionalism, this is the "right" result that a court should reach. An attorney's ethical obligations as an officer of the court, together with an attorney's conscience and morals, compel this legal conclusion. The New Hampshire courts should not empower counsel whose ethical antennae do not have the sensitivity to act with the highest of professional standards. An attorney's use of improperly released information should not be encouraged or permitted without ramifications.


The American Bar Association Standing Committee on Ethics and Professional Responsibility (the "Committee") has issued two Formal Opinions, 94-382 and 92-368, dealing with the ethical duty of an attorney who receives unsolicited or inadvertently disclosed privileged or confidential materials.4  Both ABA opinions hold that an attorney has an ethical duty to refrain from examining and using the privileged or confidential materials that come into the attorney's possession under circumstances where the attorney knows that his or her possession is unauthorized and when no other recognized principle is present that might in some instances override a strong ethical policy in favor of confidentiality.

Formal Opinion 94-382 distinguishes 92-368. In Formal Opinion 92-368, the sending party does not intend to transmit the privileged or confidential material to the receiving lawyer, such as when an attorney missends an electronic mail communication to opposing counsel. In contrast, 94-382 assumes that the unauthorized sender indeed intends that the receiving lawyer receive and make use of the transmitted materials. Such is the case study involving "Your Fairy Godmother."


Formal Opinion 94-382 specifically addresses the unsolicited receipt of privileged or confidential materials.5  In that decision, the Committee considered the obligations of a lawyer under the Model Rules of Professional Conduct when the lawyer is offered or sent, by a person not authorized to offer them, materials of an adverse party that the lawyer knows to be, or that appear on their face to be, subject to a privilege or otherwise confidential. The decision encompasses three situations: (1) where the lawyer has not solicited the production of such material and its production was not authorized by the owner of the materials; (2) where the lawyer is offered such materials and has an opportunity to decline them; and (3) where, without notice, the materials are simply sent to, and received by, the lawyer.

This Opinion outlines a lawyer's professional ethical obligations if he or she comes into possession of privileged or confidential materials, by whatever means or however innocently:

[T]he lawyer receiving such privileged or confidential materials satisfies her professional responsibility by

  1. Refraining from reviewing materials which are probably privileged or confidential, any further than is necessary to determine how appropriately to proceed;
  2. Notifying the adverse party or the party's lawyer that the receiving lawyer possesses such documents;
  3. Following the instructions of the adverse party's lawyer; or
  4. In the case of a dispute, refraining from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

The Formal Opinion noted, "Undoubtedly, the receipt of such materials may give rise to accusations by an adversary that the materials were, in fact, solicited by the receiving lawyer." Regardless of whether the materials were solicited by the attorney, the Formal Opinion makes clear an attorney's obligations.

The Opinion contains no ambiguity about whether it is proper to hold the privileged document, read and analyze it, notify the adverse party about it, follow the instructions of the adverse party's lawyer, use it, or file the document in open court. To the contrary, the Opinion mandates the prompt return of the material which may be subject to a privilege. The Committee reaches the conclusion that the receipt and review of unsolicited, privileged materials constitutes a violation of a lawyer's professional responsibilities.7 


In addition to the 1994 Formal Opinion, another ABA ruling supports the finding that the inadvertent disclosure of the Diary does not destroy the work-product immunity. Formal Opinion 92-368 considers documents (1) that were on their face privileged or subject to work-product protection; and (2) where the documents were received under circumstances when it is clear they were not intended for the receiving lawyer. The oft-cited example is the "missent fax" delivered to the wrong recipient. The facts underlying the scenario in this ABA Formal Opinion are closely aligned with Formal Opinion 94-382. The ABA concluded that the lawyer receiving the materials had a professional responsibility, upon recognizing the error, to avoid reviewing the materials, to notify sending counsel of the error, and to follow sending counsel's directions as to the handling and disposition of the privileged materials.

That conclusion was influenced by the values served by concepts of confidentiality and the privilege, as well as the law governing bailments and missent property, and general considerations of "common sense, reciprocity and professional courtesy."


In addition to the clear guidance offered by the ABA Formal Opinions, the New Hampshire Ethics Committee, in an opinion approved by the Board of Governors but not the Supreme Court, has considered the ethical issues at issue in this case. The Ethics Committee, in a Practical Ethics Article dated May 11, 1994, ruled:

A lawyer who receives materials that appear on their face to be confidential and not intended for receipt by that lawyer, as a matter of ethical conduct contemplated by the precepts underlying the Model Rules (a) should not examine the materials once the inadvertence is discovered, (b) should notify the sending lawyer of their receipt and (c) should abide by the sending lawyer's instructions as to their disposition.

The New Hampshire article cites with approval ABA Formal Opinion 92-368.8


In addition to the ABA Formal Opinions and the New Hampshire Ethics opinion, many courts have echoed the call for courteous, fair and straightforward behavior by counsel in such circumstances and have not permitted them to capitalize on unintentional disclosures of privileged materials.

For example, In re Shell Oil Refinery,9  the court considered the issue of where a current employee of a party provided an adverse party with confidential documents of the employer. The federal court in Louisiana prohibited the receiving party from making use of the materials for the following reasons:

The court is concerned with preserving the integrity of this judicial proceeding. What matters is balancing the scales. That can be done by prohibiting [receiving party] from making any use of the documents, requiring [receiving party] to identify and produce the documents to show, and prohibiting [receiving party] from any further ex parte contact with any Shell employees other than those who are Plaintiffs in this suit. The court found that the unauthorized receipt of proprietary documents was inappropriate and contrary to fair play.

In citing Formal Opinion 94-382, the court recognized that parties should be able to protect their proprietary interests, as in the case of confidential materials, and legally-recognized privileges despite unauthorized efforts of others to undermine or sabotage them.10 

In Mendenhall v. Barber-Greene Co., the court noted: "We are taught from first year law school that waiver imports the 'intentional relinquishment or abandonment of a known right.' Inadvertent production is the antithesis of that concept."11  In that case, twenty-eight files were produced in response to a production request encompassing all of Mendenhall's files. Four attorney-client privileged letters were inadvertently included. Despite acknowledging that Mendenhall's lawyer may have been negligent for failing to cull the files of the letters before producing them, the court found no waiver.

Several other courts have cited with approval to Formal Opinion 94-382 or the principles enunciated therein that mere inadvertent production of documents or inadvertent receipt does not waive the work-product or attorney-client privilege.12  These decisions advise courts to look to the factual basis underlying the claim that the disclosure was inadvertent to determine the client's intent and whether the disclosure was, in fact, inadvertent.13 

The central question in determining waiver of work-product immunity is whether the privileged document is shared with adversaries.14  The mere voluntary disclosure of work-product documents to a third person is insufficient in itself to waive the work-product privilege.15  Rather, the question of when disclosure to one person requires disclosure to others in the context of work-product doctrine centers on whether the material was disclosed to an adversary. In United States v. American Tel. & Tel. Co.,16  the court explained that the work-product protection:

. . .does not exist to promote a confidential relationship, but rather to promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of the opponent. The purpose of the work-product doctrine is to protect information against opposing parties, rather than against all others outside a particular confidential relationship, in order to encourage effective trial preparation . . . We conclude, then, that while the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work-product privilege.17 


In addition to the ABA Formal Opinions, the New Hampshire Ethics opinion, and the case law cited above, established evidentiary rules support the same result. In New Hampshire, it is well-settled that the New Hampshire Rules of Evidence, which would govern privileged matters at trial, govern discovery issues as well.18  In fact, the New Hampshire Rules of Evidence extend to all proceedings in the courts of the State of New Hampshire.19  Statutory privileges, the New Hampshire Supreme Court has held, should be strictly construed.20 

The purpose of the Rules is "to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence. . ."21  While the Rules are silent as to the work-product immunity doctrine, Rules 502 and 511, pertaining to the attorney-client privilege and waiver, respectively, offer instructive guidance.

Under Rule 502, pertaining to Lawyer-Client Privilege, New Hampshire recognizes that a client has a privilege to refuse to disclose and to prevent any other person from disclosing "confidential" communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and his or her lawyer. The Rule further defines "confidential" as a communication that is "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication."

Pursuant to New Hampshire Rules of Evidence,22  New Hampshire recognizes that a person waives a privilege against disclosure when he or she "knowingly and voluntarily discloses or consents to disclosure of any significant part of the privileged matter." In the Reporter's Notes, it is further stated:

"The knowing, voluntary or consensual disclosure referred to in the Rules is not intended to include a situation in which the disclosure occurs accidentally, or unknowingly, such as by eavesdropping. Thus, the waiver established by this rule must be both voluntary and knowing."

Furthermore, under Rule 511, New Hampshire recognizes that waiver of a privilege must be intentional: a claim of privilege is not defeated by a disclosure that was compelled erroneously or by a disclosure that was made inadvertently during the course of discovery.

* * *

Now let's apply the principles outlined above to the hypothetical case presented in this article. When one considers the ABA Formal Opinions, New Hampshire Ethics Committee opinion, case law, and the New Hampshire Rules of Evidence, it appears to be expressly contrary to these established precedents if the Manager's Diary - that somehow found itself in Plaintiff's hands - were stripped of its privileged status. The Manager's "disclosure" to the Plaintiff was in no way intentional, knowing, voluntary or consensual. The Manager did not affirmatively waive the work-product immunity that attaches to the Diary, and it would be patently unfair to allow the Plaintiff to profit by someone's wrongdoing in obtaining the Diary and providing it to her. Accordingly, courts considering these issues should hold that no waiver of the work-product immunity has been demonstrated.


If the Plaintiff's attorney in the hypothetical reads the Diary despite knowing that it is covered by the attorney-client privilege and/or work-product immunity, the court, in its discretion, can implement a variety of remedial measures.

1. Dismissal of the Case in its Entirety

A court can dismiss the Plaintiff's complaint outright. In Lipin v. Bender,23  a New York Court held that the "drastic sanction" of dismissal of the complaint was warranted under the circumstances. There, the Plaintiff herself read and copied privileged memoranda prepared by counsel for the defendant. The court found this conduct to be "egregious" because the plaintiff "seized the opportunity presented to obtain an unfair advantage over her adversaries in [the] litigation. Her improper conduct was then compounded by [her] counsel, who could have readily returned the documents or sought further direction from the court," instead of impermissibly using them.

2. Disqualification of Counsel

If the court opts not to dismiss the case, it may order the disqualification of the attorney. In Formal Opinion 94-382, the ABA explicitly provides that an errant lawyer's disqualification may be appropriate under such circumstances.24  Specifically, a lawyer who has reviewed the privileged materials before giving her adversary an adequate opportunity to seek appropriate protection from the courts may legitimately be disqualified. In that scenario, the court may exercise its discretion to disqualify that lawyer, erring on the side of caution in order to preserve the privileges and in light of the ethical obligations of a lawyer to avoid the appearance of impropriety.25 

Additional support for disqualification as the appropriate remedy can be found in Ackerman v. National Property Analysts, Inc.26  In that case, a federal court in New York granted a motion to disqualify Plaintiff's counsel on the ground that he had improperly used confidential information obtained from the former in-house counsel to the corporation. Because Plaintiff's counsel had taken no steps to insulate himself, the court concluded that he "must not be permitted to take unfair advantage of his 'tainted' knowledge."

Similarly, in MMR/Wallace Power & Indus., Inc. v. Thames Assocs.,27  the court disqualified counsel, holding that a client's right to select counsel of its choice "is outweighed by [the adverse party's] interest in a trial free from the risk that confidential information has been used against it and in the public's interest in the integrity of the judicial process itself."

A Texas court recently held that disqualification of counsel was the appropriate remedy in similar circumstances:

Without doubt, there are situations where a lawyer who has been privy to privileged information improperly obtained from the other side must be disqualified, even though the lawyer was not involved in obtaining the information. Discovery privileges are an integral part of our adversary system. By protecting attorney-client communications and an attorney's work product, they encourage parties to fully develop cases for trial, increasing the chances of an informed and correct resolution.28 

In approving the ABA's approach, the court noted that disqualification reflects the importance of the discovery privileges, and ensures that the harm resulting from an unauthorized privilege of disclosure of privileged information will be held to a minimum.29 

In determining whether the interests of justice require disqualification, the Texas court outlined a list of factors to be considered:

  1. Whether the attorney knew or should have known that the material was privileged;
  2. The promptness with which the attorney notifies the opposing side that he or she has received its privileged information;
  3. The extent to which the attorney reviews and digests the privileged information;
  4. The significance of the privileged information; i.e., the extent to which its disclosure may prejudice the movant's claim or defense, and the extent to which return of the documents will mitigate that prejudice;
  5. The extent to which movant may be at fault for the unauthorized disclosure; and
  6. The extent to which the non-movant will suffer prejudice from the disqualification of his or her attorney.30 

While disqualification of counsel is a harsh remedy, a Court may deem that it is appropriate under the hypothetical scenario in this circumstance. Because the Plaintiff's attorney reviewed the privileged Diary, its contents have already saturated her mind, thereby presenting the old dilemma of "unringing the bell."

3. Prohibiting Plaintiff from Using the Privileged Document or Referring to It In Any Way

Under the facts of the hypothetical, irreparable damage could result if Plaintiff is not completely precluded from using the Diary in any manner, directly or indirectly. A Michigan court found that counsel acted improperly by failing to notify the sender immediately about the inadvertent disclosure.31  There, the inadvertent recipient of the privileged document was prohibited from using the privileged document at depositions and at trial. In Resolution Trust Corp, the court further ordered "that the original letter, all copies of the letter, and all notes relating to the letter be destroyed," yet warned that this remedy "might be ineffective."32 

Under our hypothetical, the case law supports the conclusion that Plaintiff should be precluded from using the Diary and any other documents she may have inadvertently received in any manner whatsoever. A court may order her to return to the Manager the original Diary, the envelope it arrived in, and any other materials inadvertently received. Included also should be all copies of and materials referring to, summarizing or analyzing the contents of the Diary and any other materials inadvertently received. Moreover, she should be prohibited from discussing, interrogating or making mention of, or engaging in any discovery of or about, the Diary, its contents and the contents of any other materials inadvertently received.

4. Sanctioning Plaintiff

In light of the gravity of Plaintiff's indiscretions in our hypothetical case, an aggrieved party may urge the court to consider whether sanctions may be appropriate.33  Sanctions serve two primary purposes: deterrence for future misconduct and compensation to those who incurred costs as the result of a party's misconduct.34  The imposition of attorney's fees may be considered by a court in weighing the appropriate level of "pain" to deter future similar conduct.35 


Conduct such as that described in this hypothetical scenario strains the energy and vitality of the judicial system. Unfortunately, the factual circumstances described here are not uncommon. A plethora of case law and rules addresses these very issues. Communication speed and efficiency are increasing daily and being regularly utilized in litigation. Innovations, such as electronic mail, may cause the inadvertent release and receipt of confidential and privileged communications to be all the more commonplace. Let's hope that New Hampshire practitioners, reinforced by a strong stance by the courts in favor of professionalism, will do the "right" thing if (when) faced with a Fairy Godmother of their own.



This action likely defeats any attorney-client privilege that otherwise may attach.


An important distinction exists in analyzing waiver as to the attorney-client privilege and the work-product doctrine. One legal scholar explained:


A finding that the work-product protection has been waived by disclosure to others is much less likely than a finding that the attorney-client privilege has been waived under similar circumstances. That is because the attorney-client privilege is based upon the principle of confidentiality, so any disclosure taints the privilege at its very source. Selective and strategic disclosure is entirely consistent with work-product protection, however, because the work-product protection is concerned with implementing the adversary process, not just encouraging confidential communications.


Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, Section of Litigation, American Bar Association (1997), p. 403.


It should be noted that a number of courts and state ethics committees do not agree with this view. It is the ABA's position, however, and it is advocated by a number of courts and tribunals. Essentially, three distinct ways of handling the issue as to whether or not inadvertent disclosure of confidential information waives the privilege and, consequently, what type of use the receiving attorney is permitted to make of the information have emerged:

  • Inadvertent disclosure constitutes a waiver;
  • Case-by-case balancing of factors, focusing on the reasonableness of precautions taken before disclosure, and actions taken after; and
  • Mere inadvertent disclosure is insufficient to waive the privilege.


See ABA/BNA 1001:221, ABA Formal Opinion 92-368 ("Inadvertent Disclosure of Confidential Material") and ABA/BNA 1001:155, ABA Formal Opinion 94-382 ("Unsolicited Receipt of Privileged or Confidential Materials").


ABA/BNA 1001:221. The decision holds:
A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be privileged or confidential should, upon recognizing the privileged or confidential nature of the materials, either refrain from reviewing such materials or review them only to the extent required to determine how appropriately to proceed; she should notify her adversary's lawyer that she has such materials and should either follow instructions of the adversary's lawyer with respect to the disposition of the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.


ABA/BNA 1001:225. See Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F. Supp. 651 (M.D. Fla. 1992), aff'd, 43 F.3d 1439 (11th Cir. 1995).


This article does not specifically address whether professional conduct violations, if any, may be implicated.


ABA Formal Opinion 94-382 was issued approximately two weeks after the New Hampshire Practical Ethics Article was authored.


143 F.R.D. 105 (E.D. La.), amended and reconsidered on other grounds, 1992 U.S. Dist. LEXIS 17434 (E.D. La. 1992) and 144 F.R.D. 73 (E.D. La. 1992).


Id.; 1001:224.


531 F. Supp. 951, 955 (N.D. Ill. 1982), amended on reh'g, en banc denied 1994 U.S. App. LEXIS 26588, and cert. denied 513 U.S. 1018 (1994).


See, e.g., State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 1999 Cal. App. LEXIS 189 (Mar. 4, 1999); Weeks v. Samsung Heavy Ind. Co., Ltd., 1996 U.S. Dist. LEXIS 17832, *13 (N.D. Ill. 1996) and Weeks v. Samsung Heavy Ind. Co., Ltd., 1996 U.S. Dist. LEXIS 7397 at *7-8 (N.D. Ill. 1996); Berg Elecs. v. Molex, Inc., 875 F. Supp. 261, 263 (D. Del. 1995) (where production was inadvertent, client did not waive privilege that protects documents from disclosure); Helman v. Murry's Steaks, Inc., 728 F. Supp. 1099, 1104 (D. Del. 1990) (since the client is the holder of the privileges, it would fly in the face of the essential purpose of the privilege to allow a truly inadvertent disclosure of a privileged communication or document to waive the client's privilege); Fidelity Bank, N.A. v. Bass, 1989 U.S. Dist. LEXIS 1166 (E.D. Pa. 1989); Permian Corp., 665 F.2d at 1219-20 (privilege claims are preserved when inadvertent disclosure is made despite diligent precautions in massive expedited discovery); Mendenhall, 531 F. Supp. at 951 (more than negligence by counsel must be shown before a client can be deemed to have given up the attorney-client privilege); In re Meador, 968 S.W.2d 346, 351 (Tex. 1998); Connecticut Informal Opinion 96-4; Oregon, Formal Opinion No. 1998-150.


Berg, 875 F. Supp. at 263.


GAF Corp. v. Eastman Kodak Co., 85 F.R.D. 46, 52 (S.D.N.Y. 1979).


See Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (citing United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980)).


642 F.2d 1285, 1299 (D.C. Cir. 1980).


See also Permian Corp. v. United States, 665 F.2d 1214, 1219-20 (D.C. Cir. 1981); Niagara Mohawk Power Corp. v. Stone & Webster Eng. Corp., 125 F.R.D. 578, 587, 590 (N.D.N.Y. 1989); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 328 (N.D. Cal. 1985); Tronitech, Inc. v. NCR Corp., 108 F.R.D. 655, 657 (D.C. Ind. 1985); 8 Wright, Miller & Marcus, Federal Practice & Procedure: Civil 2d 2024, p. 369 (2d ed. 1994).


Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966).


N.H. Rules of Evid. Rule 101.


State v. Melvin, 132 N.H. 308, 310 (1989).


Rule 102.


Rule 511.


193 A.D.2d 424 (N.Y. App. Div. 1993).


ABA/BNA 1001:225.




1993 W.L. 258, 679 (S.D.N.Y. 1993).


764 F. Supp. 712, 728 (D. Conn. 1991).


In re Dana Meador, Relator, 968 S.W.2d 346, 351 (Tex. 1998).




Id. at 351-52.


See Resolution Trust Corp. v. First of America Bank, 868 F. Supp. 217 (W.D. Mich. 1994).


Id. at 221; see also Hebert v. Anderson, 681 So. 2d 29, 31-33 (La. App. 1996).


See Daigle v. City of Portsmouth, 133 N.H. 498, 499-500 (1990) (sanctions appropriate where a party knowingly misrepresents facts and acts wantonly and oppressively); Daigle v. City of Portsmouth, 131 N.H. 319, 325 (1988), appeal after remand, 133 N.H. 498 (1990), remanded, 137 N.H. 572 (1993) (imposition of discovery sanctions is a matter left largely to the court's discretion).




Id. at 327; Hubbard v. Panneton, 121 N.H. 526, 528 (1981). For a discussion of a party sanction for violating ABA Formal Opinion 92-368, see American Express v. Accu-Weather, Inc., 1996 U.S. Dist. LEXIS 8840 (S.D.N.Y. 1996).

The Author

Attorney Julie A. Moore, Employment Practice Group, Windham, NH.



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