In re: Neil S. Kagan

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
–————
No. 02–8508 September Term, 2003
Filed On: December 30, 2003
I N RE: NEIL S. KAGAN,
RESPONDENT
–————
BEFORE: S ENTELLE , HENDERSON, and ROGERS , Circuit
Judges.
O R D E R
Upon consideration of the Report and Recommendation of
the Committee on Admissions and Grievances, and the re-
sponse thereto, which contains a request that the report be
published as an addendum to National Wildlife Foundation
v. EPA, 286 F.3d 554 (D.C. Cir. 2002), it is
ORDERED that the Committee’s Report and Recommen-
dation that no disciplinary action be taken against respondent
be adopted. It is
FURTHER ORDERED that the Report and Recommen-
dation, without attachments, be published as an addendum to

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National Wildlife Foundation v. EPA, 286 F.3d 554 (D.C.
Cir. 2002).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Nancy G. Dunn
Deputy Clerk

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
–————
No. 02–8508
IN RE: NEIL S. KAGAN, ESQUIRE
–————
Report and Recommendation of the
Committee on Admissions and Grievances
This matter relates to the obligations of an attorney who,
after receiving and reviewing information from a litigation
adversary, realized that the information was confidential in-
formation that had been produced inadvertently. For the
reasons set forth below, the Committee concludes that the
attorney in question acted responsibly at all times and with
due regard for his professional responsibilities. Accordingly,
it is the unanimous recommendation of the Committee on
Admissions and Grievances that no disciplinary action should
be taken in this matter.
I.
Introduction
This matter arises out of Neil S. Kagan, Esquire’s repre-
sentation of the National Wildlife Federation and others
(collectively referred to hereafter as ‘‘NWF’’) in a challenge of
rule-making by the Environmental Protection Agency
(‘‘EPA’’). Specifically, EPA promulgated certain rules under
the Clean Water Act and the Clean Air Act in connection with
the regulation of the pulp and paper industry. In doing so,
EPA chose one set of regulations (‘‘Option A’’) over another
(‘‘Option B’’), having concluded, among other things, that the
latter option would prove too costly to the industry and would
result in mill closures and the likely bankruptcy of major
paper companies. EPA reached this conclusion based in part
upon confidential business information (‘‘CBI’’) provided to it
by various companies in the industry. Mr. Kagan, on behalf
of NWF, challenged EPA’s conclusion that Option B — which
provided for greater environmental protections — was too
costly.

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Knowing that EPA had relied upon CBI in reaching its
decision — information to which Mr. Kagan did not have
access because of its confidential designation — Mr. Kagan
sought production of all CBI through a motion to compel.
This Court denied the motion by order dated February 2,
2000, which read in pertinent part:
[T]he motion to compel TTT [is] denied. The confi-
dential business information NWF seeks is the type
of sensitive information and confidential or trade
secret information that EPA can properly withhold
from public view. The material contained in the
public record appears sufficient for NWF to mount a
challenge to EPA’ s rulemaking.
See Attachment A hereto (citations omitted).
Thereafter, in late May 2000, in preparing NWF’s merits
brief to be filed with this Court on June 9, 2000, Mr. Kagan
printed certain spreadsheets that had been obtained from
EPA nearly a year earlier via electronic mail. Mr. Kagan
first reviewed the spreadsheets while working at home in the
evening of May 30, 2000. The spreadsheets had been created
by EPA from CBI provided to it by members of the paper
and pulp industry. One of the spreadsheets contained infor-
mation that Mr. Kagan considered quite valuable in the
advancement of his client’s arguments that Option B was not
prohibitively expensive. When he first reviewed this spread-
sheet, Mr. Kagan did not notice the letters ‘‘CBI’’ printed on
page three of the document. Upon scrutinizing the document
more closely the following day, however, he realized that the
information contained in the document had been classified as
‘‘CBI’’ and that EPA had inadvertently produced the docu-
ment to him.
Mr. Kagan immediately recognized that he was confronted
with a serious ethical issue and sought to determine the
appropriate course of action. The next morning he spoke to
his supervisor, and, without relating the contents of the
document, informed him of the inadvertent production of the
CBI material and of the fact that the document was quite
helpful to NWF’s case. The supervisor then contacted

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NWF’s general counsel, who referred Mr. Kagan to outside
counsel specializing in legal ethics. Outside counsel advised
Mr. Kagan that Mr. Kagan was obliged — as a zealous
advocate for his client — to utilize the document in connection
with his brief to this Court. Counsel further advised Mr.
Kagan that his brief should be filed under seal so that there
would be no public disclosure of the information contained in
the document. Finally, counsel urged Mr. Kagan to contact
EPA and notify it of the inadvertent disclosure.
Ultimately, the relevant spreadsheet was not cited or ap-
pended to NWF’s brief; rather, through negotiations initiated
by EPA, Mr. Kagan was supplied with an alternative citation
which was used in the brief filed with the Court. Mr. Kagan
initially refused EPA’s request for the return of his printout
of the spreadsheet, maintaining that he needed to retain it in
the event the factual assertions in his brief were challenged.
The document later was returned to EPA after EPA stipu-
lated to the crucial information contained in the document.
The industry parties responded by filing with the Court a
motion for sanctions against NWF. Rather than ruling on
the motion, this Court referred Mr. Kagan to the Committee
on Admissions and Grievances:
We begin and end our analysis with this Court’s
Order denying NWF’s motion to compelTTTT We
issued our Order in direct response to NWF’s re-
quest for CBI — the CBI it subsequently received,
used, and retained. Our Order stated clearly that
‘‘[t]he confidential business information NWF seeks
is the type of sensitive information and confidential
or trade secret information that EPA can properly
withhold from public view.’’ The effect of our Order
was simple: NWF requested access to the informa-
tion; we denied the request. That NWF later re-
ceived this information inadvertently in no way
changes our designation of his material as ‘‘confiden-
tial,’’ ‘‘sensitive,’’ and similar to ‘‘trade secret infor-

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mation,’’ and in no way changes our position that
NWF counsel should not have had access to it.
Because of that, we fail to understand how NWF
counsel, after receiving the information and learning
of the inadvertent disclosure, could justify retaining
and using the information in his possession.
NWF counsel, and the attorney he consulted, relied
on ethics and judicial opinions which hold that under
some circumstances, a privilege is waived if inadver-
tently released by the privilege holder. In doing so,
NWF counsel and his attorney appear to have mis-
characterized the operative facts and been unaware
of caselaw from this Circuit that closely resembles
the question at hand: whether the inadvertent dis-
closure of privileged or confidential information
maintained by a third party (here, EPA) constitutes
waiver. See SEC v. Lavin, 111 F.3d 921 (D.C. Cir.
1997).
* * *
We understand, however, that the present situation
involves an Order of this Court concerning trade
secret information rather than an evidentiary privi-
lege. The holding of Lavin then, while instructive, is
not necessarily controlling. The Lavin holding does
instruct us, however, to seriously question the pro-
priety of counsel’s actions, especially when taken
together with the language of our Order denying
NWF access to the very information NWF now
argues it was entitled to use. For these reasons,
rather than impose sanctions against NWF counsel,
we refer this matter to the Committee on Admis-
sions and Grievances for its consideration and such
recommendation or petition to the Court as the
Committee may see fit to present. See In re Door,
195 F.2d 766, 770 (D.C. Cir. 1952).

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Nat’l Wildlife Foundation v. E.P.A., 286 F.3d 554, 575–76
(D.C. Cir. 2002) (emphasis in original).
II.
Investigation by the Committee
The full Committee met and conferred on various occasions
in connection with this matter. On July 31, 2002, it conducted
a four-hour hearing at which it took sworn testimony of Mr.
Kagan and the outside counsel he consulted in connection
with the CBI material, David N. Webster, Esquire. No
attorney-client privilege was asserted by Mr. Kagan.
The Committee also reviewed the following documents,
among others:
1. NWF’s motion to compel production of CBI, the oppo-
sition thereto, and this Court’s order denying the motion to
compel;
2. A redacted version of the spreadsheets inadvertently
provided to Mr. Kagan;
3. The stipulation between NWF and EPA regarding the
inadvertently-produced spreadsheets;
4. The motion for sanctions, and the opposition thereto;
5. The appellate briefs filed by the parties;
6. The tape recording of the oral argument before this
Court;
7. Affidavits and declarations of Neil S. Kagan, David N.
Webster, Carol Ann Siciliano, Paul L. Bennington, Geoffrey
H. Grubbs, Nicholas Bennett, Michael Grady Jackson, John
E. Bonine, Eileen Morgan Johnson, Andrew P. Buchsbaum,
and Peter E. Seley; and
8. Written submissions by counsel for Mr. Kagan in con-
nection with the Committee’s hearing.1
1 The Committee has not appended all the voluminous materi-
als submitted in connection with the hearing; however, the Commit-
tee would be pleased to make them available to the Court should it
wish to review them.

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III.
Factual Findings of the Committee
After hearing the testimony of Mr. Kagan and Mr. Web-
ster, and after reviewing the other materials set forth above,
the Committee credits that testimony and makes the follow-
ing findings of fact:
1. On November 9, 1998, after unsuccessfully negotiating
with EPA for disclosure of the CBI on which it relied in
promulgating the regulations at issue in this case, Mr. Kagan
filed a motion to compel EPA to disclose the CBI (Tr. 25–26).2
2. In June of 1999, Mr. Kagan asked a law clerk to
contact EPA and request public documents relating to ‘‘which
mills were using the oxygen delignification [‘‘OD’’] technolo-
gy’’ (Tr. 53). He needed this information in connection with
establishing his client’s Article III standing (Tr. 46).3
3. Also in June of 1999, EPA responded to the law clerk’s
e-mail request by transmitting an e-mail entitled ‘‘Mill w/OD
list’’ and attaching spreadsheets (Tr. 39). The law clerk,
finding the document unhelpful on the issue of standing,
forwarded it nonetheless to Mr. Kagan on June 15, 1999 with
a notation explaining that the document was not particularly
useful (Tr. 39–40). Mr. Kagan archived the e-mail on his
computer without reading the attachments.
2 ‘‘Tr.’’ refers to the transcript of the hearing held by the
Committee on July 31, 2002, which is appended hereto as Attach-
ment B.
3 Mr. Kagan explained: ‘‘Our claim was that EPA rejected the
OD technology and adopted the clust[er] rules[,], so I needed to
know which mills were not using the OD technology because people
living downstream of those mills would be harmed by EPA’s failure
to require the OD technology as the best available technology’’ (Tr.
53). That is, if Mr. Kagan’s clients were located near mills using
the OD process, then the clients could not claim any injury and thus
did not have standing to complain about the rule-making (Tr. 53–
54).

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4. On February 2, 2000, the Court denied NWF’s motion
to compel production of CBI material (see Attachment A
hereto).
5. Settlement discussions among the parties had broken
down by April/May 2000, and Mr. Kagan turned his attention
to preparing NWF’s merits brief, due in this Court on June 9,
2000. Mr. Kagan directed staff members to determine ‘‘how
many hardwood lines did not use [oxygen delignification
technology]’’ (Tr. 62), in an effort to demonstrate that EPA’s
rejection of Option B was erroneous because the projected
cost of Option B was inflated.
6. In late May 2000, Mr. Kagan began to assemble the
large number of documents already amassed during the
litigation. Mr. Kagan planned to review the documents be-
fore filing his brief to ensure that no useful information had
been overlooked (Tr. 65). In doing so, Mr. Kagan opened the
archived e-mail that he had originally received from his law
clerk on June 15, 1999, and printed the attached document,
which ‘‘contained three spreadsheets, the second of which
contained CBI and included the notation ‘CBI’ above the
spreadsheet.’’ Nat’l Wildlife Foundation v. E.P.A., 286 F.3d
554, 574 (D.C. Cir. 2002); see also Tr. 67–68. He then placed
the spreadsheets in the pile of documents he planned to
review (Tr. 66).
7. May 30, 2000, while working at home in the evening,
Mr. Kagan first reviewed the spreadsheets. He immediately
saw that one of them provided the ‘‘number of hardwood lines
that did not use [oxygen delignification]’’ (Tr. 87), which was
the very information for which he had been searching (Tr.
87).
8. The following day, May 31, 2000, Mr. Kagan examined
the document again and saw for the first time the initials
‘‘CBI’’ on page three of the spreadsheet in question. The
Committee, having seen the document (with the CBI material
itself redacted), can assure the Court that ‘‘the CBI notation
was only located on the first page of the second spreadsheet

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[the third sheet in the document], and was in all other ways
inconspicuous.’’ See 286 F.3d at 574.4 See also (Tr. 91–92).5
9. The document had been inadvertently produced to Mr.
Kagan by EPA. See Decl. of Geoffrey H. Grubbs, Director of
Office of Science and Technology, Office of Water, EPA
(Attachment D hereto).
10. Upon making this discovery, Mr. Kagan immediately
took steps to determine the proper course of action.
a. Mr. Kagan informed his immediate supervisor and
sought his advice (Tr. 94). Mr. Kagan did not disclose the
confidential information to his supervisor (Tr. 95).
b. Mr. Kagan then contacted NWF’s general counsel,
repeated his concerns, and again asked for advice about ‘‘the
right thing to do TTT with the information, whether [he] could
use it or what’’ (Tr. 96). He further told NWF’s general
counsel that he ‘‘needed expert counsel’’ (Tr. 96).
c. NWF’s general counsel referred Mr. Kagan to outside
counsel, David N. Webster, Esquire. Mr. Webster, a mem-
ber of the District of Columbia Bar and the Maryland Bar,
has considerable experience in legal ethics (Tr. 161–62). In
the 1960s he served on the legal ethics committee of the
District of Columbia Bar Association, including as chairman.
He later served for five years on the D.C. Bar Legal Ethics
Committee. He has regularly represented and advised law-
yers and law firms (including his own) on legal ethics. Mr.
Webster has also lectured on legal ethics at prestigious law
schools.
d. Mr. Webster was already generally familiar with the
issue of a lawyer’s obligation upon the receipt of confidential
information inadvertently disclosed by an adversary, due to
work he had done for other clients (Tr. 162, 179, 183). Mr.
4 Indeed, at the hearing held by the Committee, some members
asked Mr. Kagan to point out the CBI notation, as it was not
readily apparent on the printed spreadsheet itself.
5 The redacted spreadsheet is attached hereto as Attachment
C.

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Webster was also familiar with D.C. Bar Legal Ethics Com-
mittee Opinion 256 (Inadvertent Disclosure of Privileged Ma-
terial to Opposing Counsel) (June 1995), although Mr. Web-
ster had not been a member of that committee at the time
that opinion was issued (Tr. 183).
e. Mr. Kagan consulted with Mr. Webster, informing him
of the relevant facts. Among other things, Mr. Kagan ‘‘told
him there had been a Motion to Compel,’’ ‘‘read the language
of the order denying the Motion to Compel,’’ and explained
that the CBI information contained in the document ‘‘was
essential to TTT one of the arguments in [the] case’’ and said
that he ‘‘needed his advice on what to do with it’’ (Tr. 101–02,
165). Based in large part on Opinion 256 (Tr. 170–71), Mr.
Webster advised him to contact EPA and inform officials
about the disclosure, and told him he should use the informa-
tion in his brief, provided that the brief were filed under seal
(Tr. 104).
f. After receiving outside counsel’s advice, Mr. Kagan
read the ethics opinion cited to him by counsel (Tr. 128–29).
He concluded that the opinion ‘‘seemed to support his advice
or did support his advice because it dealt with a very analo-
gous situation’’ (Tr. 129).
g. Mr. Kagan sought the advice of yet another attorney,
who also recommended filing the brief under seal (Tr. 125–
26).
h. Mr. Kagan then followed the advice of counsel and
telephoned EPA’s counsel on that same day, May 31, in-
formed EPA’s counsel of the inadvertent disclosure of the
material, and advised her that he planned to use the informa-
tion in his brief and that he planned to file the brief under
seal (Tr. 129–30). Mr. Kagan also forwarded to EPA’s coun-
sel a copy of the 1999 EPA e-mail attaching the spreadsheets
in question (Tr. 131–32).
i. On his own initiative, Mr. Kagan later placed the docu-
ment in a safe deposit box ‘‘so that nobody else could see [it]’’
(Tr. 153–54). He also deleted the document from his hard

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drive and backup. See Kagan Decl. ¶ 38 (Attachment E
hereto).
11. Counsel for EPA — not Mr. Kagan (Tr. 136)6 — then
proposed that, in exchange for Mr. Kagan not citing the
document in his brief, EPA would supply him with an alterna-
tive citation of a summary nature (Tr. 133, 135–36, 137). Mr.
Kagan agreed to this proposal (Tr. 133).
12. Counsel for EPA ‘‘regularly’’ requested that Mr. Ka-
gan return the document (Tr. 139). Mr. Kagan did not do so
immediately, however, for the following reasons:
I was concerned that well, first of all, I was only
going on [counsel for EPA’s] word that the cite she
had given me actually supported the statement that
there [were] 47 hardwood lines. I had nothing
without that spreadsheet to document that was a
correct number. So I needed to retain it so I could
prove that that was the right number if EPA or the
intervenors contested the accuracy of the number.
(Tr. 139–40).
13. Thereafter, EPA and NWF entered into a stipulation
regarding the number of hardwood lines, and Mr. Kagan then
returned the document to EPA, following the agency’s specif-
ic directions for returning the document (Tr. 154). As a
result, the document was not cited or appended to NWF’s
brief filed with this Court. There was never any unautho-
rized disclosure of the CBI, except for EPA’s inadvertent
disclosure to Mr. Kagan.
IV.
Conclusion
There is no dispute that EPA inadvertently disclosed confi-
dential business information to Mr. Kagan, and the Commit-
tee credits Mr. Kagan when he says that he reviewed the
contents of the document and absorbed its meaning and
6 See Decl. of Carol Ann Siciliano, EPA Office of General
Counsel (Attachment F hereto) ¶ 4.

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significance before discovering the almost imperceptible let-
ters ‘‘CBI’’ on an internal page of a multi-page document.
Thus, Mr. Kagan was faced with the ethical dilemma of
having unexpectedly, and initially unknowingly, gained knowl-
edge of information that was simultaneously extremely help-
ful to his client and unquestionably confidential. Having had
the opportunity to observe Mr. Kagan’s demeanor over a
four-hour period, to listen to his detailed description of events
as they unfolded, and to hear from counsel who recommended
the course of action Mr. Kagan undertook, as well as to
review the affidavits of other individuals, the Committee
concludes that Mr. Kagan acted entirely in good faith and
made every effort to follow the rules of professional responsi-
bility. We nevertheless address the two concerns expressed
by the Court about the manner in which Mr. Kagan chose to
handle this predicament.
The Court suggested that Mr. Kagan and his counsel
‘‘appear to have mischaracterized the operative facts and
been unaware of caselaw from this Circuit that closely resem-
bles the question at hand: whether the inadvertent disclosure
of privileged or confidential information maintained by a
third party (here, EPA) constitutes waiver.’’ 286 F.3d at 575
(emphasis in original) (citing SEC v. Lavin, 111 F.3d 921
(D.C. Cir. 1997)). As for the ‘‘operative facts,’’ the Court’s
opinion does not point to any specific facts that Mr. Kagan his
counsel mischaracterized, and the Committee uncovered none
during the course of the hearing. With regard to Mr. Ka-
gan’s and Mr. Webster’s ‘‘unawareness of the case law from
this Circuit,’’ the Committee concludes that reasonable attor-
neys could differ as to the appropriate course of action to take
when faced with the dilemma Mr. Kagan encountered on May
30, 2000.
As is apparent from this Court’s opinion, neither District
of Columbia Bar Legal Ethics Committee Opinion 256 (1995),
upon which Mr. Kagan relied, nor Lavin, cited by the Court,
is squarely on point. Opinion 256 dealt with a situation
where counsel for one party inadvertently discloses privi-
leged information to counsel for another party. The Opinion
concluded that where the receiving counsel has reason to

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believe the disclosure is deliberate, and is unaware that it
was inadvertent, receiving counsel ethically may utilize the
information. As this Court correctly observed, Opinion 256
did not address the situation where the information inadver-
tently disclosed actually belonged to a third party who had
taken every step to prevent disclosure of privileged informa-
tion. The Court also noted, however, that Lavin dealt with
information protected by an evidentiary privilege, while the
circumstances in this case involved ‘‘an Order of this Court
concerning trade secret information.’’ 286 F.3d at 576. Fur-
thermore, Lavin dealt with possible waiver rather than with
the ethical obligations surrounding an inadvertent disclosure.
Thus, ‘‘[t]he holding of Lavin TTT, while instructive, is not
necessarily controlling.’’ Id.
The Committee concludes that Mr. Kagan’s reliance upon
Opinion 256 was reasonable under the circumstances. The
analysis of Opinion 256 may be read to apply to the facts
here. The Committee notes that Opinion 256 expressly relied
upon Aerojet-General Corp. v. Transp. Indem. Ins., 22 Cal.
Rptr.2d 862 (Ct. App. 1993), wherein the court found no
ethical violation in a receiving lawyer’s reading and use of a
confidential document inadvertently produced by a third par-
ty. Opinion 256 arguably was the most closely analogous
authority available to Mr. Kagan.
The D.C. Bar Legal Ethics Committee has recently opined
that the analysis in Opinion 265 may apply in factual contexts
beyond the one presented in that opinion. In Opinion 318
(Disclosure of Privileged Material by Third Party) (December
2002), the D.C. Bar Legal Ethics Committee appears to
conclude that it would not be an ethical violation for a lawyer
to use privileged information of an adversary even where the
lawyer received the information in circumstances where the
privilege was not waived: ‘‘If the privileged status of the
document does not become apparent to receiving counsel until
after the document has been reviewed, as reflected in D.C.
Opinion 256, it is too late for receiving counsel to take
corrective action because the information cannot be purged

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from his mind and his obligation of zealous representation
under Rule 1.3 at that point trumps confidentiality concerns.’’7
The Committee on Admissions and Grievances is aware
that there is considerable debate and discussion in various
quarters as to the obligations of lawyers receiving inadvertent
disclosures under various circumstances. This Committee
does not believe that it is necessary or even appropriate for it
to attempt to reconcile the various views or to resolve the
debate. The Committee is charged solely with providing its
recommendation as to whether discipline is warranted on the
facts presented here. On the facts presented here, the
Committee finds that Mr. Kagan acted reasonably and with
due regard for his ethical obligations.
Faced with no clearly controlling ethical rule and with case
law and ethics opinions that were at best analogous to the
facts of this case, Mr. Kagan should not be sanctioned for
relying upon a reasonable interpretation of permissible attor-
ney conduct.8 See In re Ruffalo, 390 U.S. 544, 556 (1968)
(White, J. concurring) (‘‘I would hold that a federal court may
not deprive an attorney of the opportunity to practice his
profession on the basis of a determination after the fact that
conduct is unethical if responsible attorneys would differ in
appraising the propriety of that conduct.’’); see also In re
Polypropylene Carpet Antitrust Litig., 282 F.R.D. 680, 698
(N.D. Ga. 1998) (district court declines to impose sanction on
attorney who utilized documents inadvertently produced in
litigation because, in court’s view, ‘‘it is debatable whether [a
certain ethics opinion] establishes an ethical rule that governs
7 Reference to District of Columbia Bar ethical standards is
appropriate given that Rule I of this Court’s Rules of Disciplinary
Enforcement adopts the ethical rules adopted by the District of
Columbia Court of Appeals. Opinions of the D.C. Bar Legal Ethics
Committee, while not binding on any court, provide valuable guid-
ance to lawyers practicing the District of Columbia and it is
reasonable for such lawyers to rely upon these opinions.
8 Indeed, as Mr. Kagan explained at the hearing, no one offered
any differing points of view during the negotiations for the return of
the document, including counsel for EPA (Tr. 156–57).

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the conduct of attorneys in this circuit’’) (citing Schlumberger
Tech. v. Wiley, 113 F.3d 1553, 1560–61 (11th Cir. 1997)). Mr.
Kagan found himself in an ethical dilemma through no fault of
his own. He handled the dilemma in a manner that was
reasonable, responsible, and defensible.
This Court also viewed Mr. Kagan’s temporary retention of
the document as a direct violation of the Court’s order
denying the motion to compel. As a result of the hearing,
however, the Committee learned that, in his very first tele-
phone conversation with outside counsel, Mr. Kagan read the
Court’s order to Mr. Webster (Tr. 102). Thus, Mr. Webster
was aware of the order denying the motion to compel when
he advised Mr. Kagan. Furthermore, EPA did not take the
position that this Court’s order was an independent ground
for the immediate return of the document. The Committee
agrees that the order denying the motion to compel does not
appreciably affect the analysis of Mr. Kagan’s obligations in
circumstances in which he had already reviewed the CBI
through no fault of his own. Additionally, contrary to what
was posed in the motion for sanctions, it does not appear that
Mr. Kagan used the document as a bargaining chip with
EPA. Mr. Kagan explained to EPA’s counsel (and to the
Committee) that he anticipated that the industry petitioners
might challenge a factual assertion that was not supported by
a record citation and felt that he should retain the document
to defend any such challenge. More importantly, it was
counsel for EPA that proposed that it supply Mr. Kagan with
another citation to the record in exchange for the return of
the document, and the document itself was never cited to or
appended to NWF’s brief filed with the Court. Thus, the
Committee is satisfied that Mr. Kagan did not unethically
hold the document hostage as part of his litigation strategy.
In sum, the Committee is satisfied that Mr. Kagan acted
with the best of intentions, seeking legal advice in the face of
an ethical dilemma, and relying on the advice of well qualified
outside counsel, whose advice was supported by an opinion of
the D.C. Bar Legal Ethics Committee. The Committee does
not believe that Mr. Kagan has engaged in any misconduct,

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and therefore the Committee does not believe that any disci-
pline is warranted.
COMMITTEE ON ADMISSIONS AND GRIEVANCES
By:
Mary Patrice Brown
Committee Member
Cornish F. Hitchcock
Committee Member
Martha Purcell Rogers
Committee Member
Christopher M. Curran
Committee Chairperson
Dated: August 4, 2003

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