The Misdirected Mediation Memo

Immediately notify opposing counsel (the sender) that the documents were received and appear to be privileged, and stop reviewing them. Under Model Rule 4.4(b), a lawyer who knows or reasonably should know that a document was inadvertently sent must promptly notify the sender. Reviewing beyond what is needed to identify the error is not permitted; once the privilege legend is apparent, stop. If you already read the memo, do not use it. The client's instruction to 'use everything' does not authorize use of another party's privileged material: Rule 1.2(a) defines the scope of representation but does not permit unethical means, and Rule 1.6 protects the client's confidences-it does not license use of the opponent's. Return or destroy the documents as the sender directs; if custody is disputed, preserve them but do not use them. Do not cite the memo in mediation or shape the demand from its contents. Consider whether mediation confidentiality independently bars disclosure. Document every step.

The scan and disclosure create a firm-level risk. Instruct the paralegal and the other attorney not to read, copy, forward, or use the documents; remove or quarantine the scanned file from the shared case file; restrict access; and document who saw what and when. Rule 5.3 requires reasonable efforts to ensure that nonlawyer assistants' conduct is compatible with the lawyer's professional obligations, which includes training on misdirected-document protocols. The other attorney should be told the same thing: the firm has no right to exploit the material, and any use could taint the representation and support disqualification, sanctions, or a bar complaint. Do not treat the other attorney's knowledge as permission to review. If the firm later seeks disqualification of opposing counsel, it should do so on a proper evidentiary basis, not by mining the privileged memo. Consult ethics counsel if the sender gives instructions that conflict with the firm's preservation obligations.

Tell the client plainly that you cannot use the mediation statement, that the demand must rest on admissible evidence and legitimate negotiation, and that the client cannot direct you to violate the rules. Explain the practical risks: using the memo could lead to disqualification, sanctions, loss of credibility before the mediator, and a bar complaint, and could poison any settlement. Explore lawful alternatives: witness interviews, discovery, damages analysis, and a demand based on the plaintiff's own evidence. If the client insists on using the privileged material, you may need to decline or withdraw under Rule 1.16(a)(1) because continuing would result in a violation of the rules. If you withdraw, seek leave if the case is pending and protect the client's interests. Do not threaten to reveal the client's insistence. Put the advice in a file memo. If the client accepts the limits, continue and consider notifying the mediator only as the sender directs.