Opposing counsel faxes a letter addressed to his client that clearly is intended to be protected by attorney-client privilege, but somehow ended up on your fax machine. Do you read it? A confidential e-mail from opposing counsel directed to her clients mistakenly lands in your in-bin. Should you delete it?
As the speed of communication continues to increase and more legal work is done electronically, the risk of inadvertently sending a confidential or privileged document to an unintended recipient increases. Until recently, no rules governed what the lawyer who receives a mistakenly sent confidential or privileged communication is required to do. The lawyer made his or her own decision about notifying the sender and returning or destroying the materials.
The American Bar Association addressed the issue in its 2004 amendments to the Model Rules of Professional Conduct. Model Rule 4.4(b) provides that “a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”
Model Rules are not binding law until adopted by a particular state. Model Rule 4.4(b) has been adopted by several jurisdictions, however, some have adopted a modified version of the Rule. For example, New Jersey adopted a version of Rule 4.4(b) that contains stringent requirements for the unintended recipient. New Jersey requires that a lawyer with reasonable cause to believe that a document was sent inadvertently must not read the document, must promptly notify the sender and must return the document. In jurisdictions where no version of Rule 4.4(b) has been adopted, including California and the District of Columbia, ethics opinions of the particular jurisdiction (including opinions or rules relating to honesty and custody of the property of others) must be consulted for guidance.
Before the enactment of Model Rule 4.4(b), the only guidance regarding inadvertently received materials came from ABA Formal Opinion 92-368. That opinion, issued in 1992 and commonly referred to as the “misdirected fax opinion,” suggested that a lawyer who mistakenly received confidential or privileged materials should refrain from examining the materials, notify the sending lawyer and abide by that lawyer’s instructions. The opinion was not binding – unlike the versions of Rule 4.4(b) that have been adopted by many states.
The ABA’s Model Rule 4.4(b) differs from its 1992 opinion in several ways. First, it does not require the receiving lawyer to refrain from examining the materials. Second, the Model Rule does not require the receiving lawyer to abide by the sending lawyer’s instructions – it shifts the burden to the sender to provide a basis for protecting the inadvertently disclosed information and to take whatever protective measures may be required. Third, the new rule is not limited to “confidential documents,” but instead imposes ethical obligations on the receiving attorney with respect to any inadvertently received document, so long as the document pertains to the attorney’s representation. In 2005, the ABA withdrew its 1992 opinion in favor of the new Model Rule.
While Model Rule 4.4(b) is helpful, it has failed to produce a uniform standard. Changes to Rule 26 of the Federal Rules of Civil Procedure have been proposed that would provide a uniform rule for the discoverability of inadvertently disclosed documents in federal litigation. Until that occurs, compliance with the ABA Model Rule may not be sufficient to comply with the applicable rule in a particular jurisdiction.
More importantly, these rules only help determine whether the receiving lawyer has met his or her ethical obligations. They do not address the question of privilege or waiver. A jurisdiction’s case law governs whether a receiving party can make use of the disclosed document, and whether the disclosing party is entitled to the material’s return. Under Model Rule 4.4(b), a lawyer is not required by law to return the document, and the decision to voluntarily return the document is left to the lawyer’s own professional judgment.
Charles S. Marion and Loralene White
This article is informational only and should not be construed as legal advice or legal opinion on specific facts.