Inadvertent Disclosure – Regrettable Confusion

New York Law Journal, November 7, 2011

Inadvertent Disclosure – Regrettable Confusion

In a more nuanced opinion, the New York City Bar…Committee on Professional and Judicial Ethics issued Formal Opinion 2003-4, in which it concluded that “a lawyer receiving a misdirected communication containing confidences or secrets (1) has obligations to promptly notify the sending attorney, to refrain from review of the communication, and to return or destroy the communication if so requested, but, (2) in limited circumstances, may submit the communication for in camera review by a tribunal, and (3) is not ethically barred from using information gleaned prior to knowing or having reason to know that the communication contains confidences or secrets not intended for the receiving lawyer. However, it is essential as an ethical matter that the receiving attorney promptly notify the sending attorney of the disclosure in order to give the sending attorney a reasonable opportunity to promptly take whatever steps he or she feels are necessary.”

The entire article may be read here.