George Mason Law Review
A lawyer's erroneous disclosure of damaging information to an adversary is a variation on the broader question of whether a lawyer should ever take advantage of an adversary lawyer's blunder. And the principal concern that lawyers have with doing so is that the lawyer who has committed the error may be subject to a malpractice action by his client if the client should find out about it. All of the other purported justifications for covering up for an adversary lawyer, to the prejudice of one's own client, are simply excuses for what George Bernard Shaw would call a conspiracy of professionals against the laity.
There are widely-recognized, weighty reasons that strongly support the use of an erroneous disclosure for the benefit of one's client, and not to inform her adversary: the lawyer's fiduciary duty to her client, including the obligation of undivided loyalty; the lawyer's duty of client confidentiality; the lawyer's duty to communicate all material information to the client, and the duty to do so honestly; respect for the client's autonomy; and the contribution of the disclosed information to the search for truth.
Monroe H. Freedman,
Erroneous Disclosure of Damaging Information: A Response to Professor Andrew Perlman, 14 Geo. Mason L. Rev. 179
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