The Misdirected Settlement Memo
Priya is a paralegal at a defense firm in Newark representing a trucking company in a personal injury suit. At 4:50 p.m. Friday, she receives an email from plaintiff’s counsel’s paralegal. The subject line says “Settlement memo-final.” The email is addressed to “Team” and has two attachments: a 14-page memorandum labeled “ATTORNEY WORK PRODUCT-CONFIDENTIAL” analyzing the plaintiff’s damages exposure, and a draft expert report. Priya’s firm is not copied on the underlying email chain; the sender’s domain is plaintiff’s firm. Priya opens the email and the first page of the memo before realizing the mistake. Her supervising attorney is out until Monday. The memo includes a candid assessment that plaintiff’s expert “will likely fail a Daubert challenge” and a settlement range of $300,000 to $450,000. Priya’s firm has a $250,000 authority limit. A partner texts Priya asking whether the documents are “useful.”
1. What should Priya do in the first hour after realizing the email was misdirected? Identify the specific New Jersey obligations and the practical steps.
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She should stop reviewing, preserve the email and attachments in a separate folder, and not forward them to the partner or anyone else. Under RPC 4.4(b), a lawyer who receives a document and knows or reasonably should know it was inadvertently sent must promptly notify the sender. Priya’s conduct is imputed to the firm through RPC 5.3. She should notify her supervising attorney immediately-even on a weekend-and the firm’s general counsel or ethics partner. She should send a short notice to the sender’s paralegal and attorney: “We received your email below and attachments; we believe it was misdirected; we have not reviewed it further and will await your instruction.” She should not use the settlement range or the expert critique in any negotiation. If the partner texts “useful?”, she should reply only that the documents appear misdirected, she has not reviewed them further, and the supervising attorney has been notified.
2. Assume plaintiff’s counsel does not respond for a week. May the defense firm use the $300,000–$450,000 range to set its settlement strategy?
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No. Notification does not give the firm a license to use the material. The documents are labeled attorney work product and confidential; the firm knows they were misdirected. Using them would undermine RPC 1.6 and 4.4(b) and could waive or taint privilege. The firm should sequester the material, continue to withhold it from the case team, and if necessary seek a court ruling or a clawback agreement. The settlement range should be disregarded; the firm’s $250,000 authority limit should be based on its own evaluation. If the plaintiff later moves to compel or the firm wants to use the material, the firm should disclose the inadvertent receipt and let the court decide. The safe and ethical course is not to use it.
3. The partner tells Priya, “Delete it and don’t tell anyone; we never saw it.” What should she do?
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She should refuse. Deleting the email would destroy evidence of an inadvertent disclosure and could mislead the court or opposing counsel; the instruction itself may create a candor problem. She should preserve the email, tell the partner she cannot delete it, and escalate to the managing attorney or ethics counsel. If the firm has no ethics counsel, she should document the instruction and seek advice from the New Jersey bar’s ethics hotline. Under RPC 5.3, the firm must not permit a nonlawyer to be used to circumvent ethical duties. Priya should not argue with the partner in front of others; she should put her objection in writing. If the firm destroys the material, she should not participate and should consider her own obligations.