Chapter 4: Case Questions: Merits Incentives, LLC v Eighth Judicial District Court of the State of Nevada, 262 P. 3d 720, 127 Nev. Adv. Op. 63 (2011) (Pages 174- 177)

1. How did the Nevada supreme court come to hear this case? What was the lower court's ruling?

2. What was the basis for the petitioners' writ of mandamus? Why did the petitioners seek to disqualify the lawyer?

3. Should a lawyer or paralegal review information or documents from an anonymous source during the course of litigation?

4. Did the lower court abuse its discretion by refusing to disqualify the lawyer?

5. What factor analysis did the Nevada Supreme Court consider in its decision? Examine how each of these factors relates to the court's decision.

6. What does the court say about the proper grounds for disqualification? Which rules are applicable to the court's ruling?

Confidentiality considers the nonexhaustive list of factors listed in In re Meador, 950 3. Should a received fi S. W.2d 346 (Tex. 1998)." The opinion first noted that Mowbray did not violate any ethical 4. Did the lo rules and that Nevada Bar Rule 4.4(b), which governs inadvertent disk lawyer? closures in Nevada (and is similar to Florida Bar Rule 4-4.4(b)), did not 5. What fact apply because the disclosure was from an anonymous third party, not the decision? opposing party/counsel, and was intentional rather than inadvertent decision. Nevada Bar Rule 4.4(a) (prohibiting methods of obtaining evidence 6. What do that violate the rights of a third person), and Nevada Bar Rule 8.4(dy Which r (prohibiting conduct prejudicial to the administration of justice), also did 7. What rec not apply because those rules require some affirmative action by the anonym lawyer but Mowbray had passively received the information. Absent any controlling authority, t he opinion analogized to Nevada Bar Rule 4.4(b) and imposed a requirement that lawyers who receive In the anonymous information regarding a case must promptly notify opposing tently discl counsel. Failure to do so could result in an ethica thical violation and/ or dis- sition. The qualification of the lawyer. The opinion also found that the trial court did not abuse its discretion by refusing to disqualify Mowbray because he had promptly notified opposing counsel of the anonymous disclosure and had declined to review the privileged document. The opinion adopted the Meador multifactor analysis used by the Texas Supreme Court for the trial court's determination of the disqual- ification question. The list of factors includes but is not limited to: 1. whether the lawyer knew or should have known that the material Her was privileged; 2. the promptness with which the lawyer notified the receives opposing side of the receipt of the privileged information; 3. the extent remedy to which the lawyer reviewed and digested the privileged information; 4. the significance of the privileged information; i.e., the extent to which dants), the disclosure may prejudice the moving party's claim or defense, and the were su extent to which the return of the documents will mitigate any prejudice; while b 5. the extent to which the moving party may be at fault for the unauthor- tives m two des ized disclosure; and 6. if and to what extent the non-moving party will nerabili suffer prejudice from the disqualification. meetin The court concluded that although there is no Nevada Rule of Yukev Professional Conduct that specifically governs an attorney's actions areas to under these facts, the attorney in this case fulfilled any ethical duties by typed giving prompt notification to opposing counsel, soon after his receipt of legal. the disk from an unidentified source, through an NR CP 16.1 disclosure. and n copy intent