Formal Opinion 2003-04: Obligations Upon Receiving a Communication Containing Confidences or Secrets Not Intended for the Recipient
TOPIC: Inadvertent Disclosure of Communications Containing Confidences or Secrets; Duty to Preserve Confidences and Secrets; Obligation of Zealous Representation; Obligation to Refrain from Conduct Prejudicial to the Administration of Justice.
DIGEST: When a lawyer receives a letter, fax, e-mail or other communication containing confidences or secrets that the lawyer knows or reasonably should know were transmitted by mistake, the lawyer confronts a number of issues implicating the administration of justice, respect for the attorney-client relationship and the obligation to zealously represent one’s own client. This opinion examines the various approaches to these issues and concludes 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.
CODE: DR 1-102(A)(5), DR 4-101, DR 7-101(A), DR 9-102(C).
QUESTIONS: What are the ethical obligations of the lawyer who receives a misdirected communication containing confidences or secrets? Must the lawyer notify the sender? Must the lawyer return the communication and/or destroy all copies? May the lawyer review the communication? May the lawyer use information learned from the communication?
A lawyer who receives a misdirected communication containing confidences or secrets should promptly notify the sender and refrain from further reading or listening to the communication, and should follow the sender’s directions regarding destruction or return of the communication. However, if there is a legal dispute before a tribunal and the receiving attorney believes in good faith that the communication appropriately may be retained and used, the receiving attorney may submit the communication for in camera consideration by the tribunal as to its disposition. Additionally, the receiving attorney is not prohibited as an ethical matter from using the information to which the attorney was exposed before knowing or having reason to know the communication was inadvertently sent. 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.
As advances in technology have made communication easier, so too they have made mistakes in transmission of those communications easier as well. It is therefore not surprising that the legal ethics community first began to devote attention to the problem of the misdirected communication in the late 1980s, when the fax became a widespread method of communication. The problem has attracted even more attention as electronic mail has become commonplace. From the perspective of legal ethics, the questions arising from misdirected communications are identical whether the error in transmission stems from pressing the wrong speed-dial button on a fax machine, mistakenly choosing the “all counsel” e-mail list, or simply putting a letter to client in an envelope mistakenly addressed to opposing counsel: What are the ethical obligations of the lawyer who receives a misdirected communication containing confidences or secrets? Must the lawyer notify the sender? Must the lawyer return the communication and/or destroy all copies? May, or must, the lawyer review the communication and use the information learned for the benefit of the lawyer’s client? 1
I. Prior Approaches
Ethics opinions and rules have been far from uniform in answering these questions, finding varied obligations with respect to notification of the sender, return or destruction of materials and use of information learned from them.
A. Obligation to Notify and/or Return
1. Notify and Return Upon Request
One of the first bodies to address the question of the lawyer’s obligations upon receiving a misdirected communication was the ABA Standing Committee on Ethics and Professional Responsibility (the “ABA Committee”). In Opinion 92-368 (1992), the ABA Committee concluded that a lawyer who receives a misdirected communication from another lawyer “should notify the sending lawyer of their receipt and should abide by the sending lawyer’s instructions as to their disposition.” Acknowledging that existing disciplinary rules did not clearly address the issue, the ABA Committee based its conclusion upon, among other things, the profession’s overarching interest in protecting the confidentiality of client communications, analogies to the obligations of bailees under common law principles, and a version of the “golden rule” (i.e., “[w]hile a lawyer today may be the beneficiary of the opposing lawyer’s misstep, tomorrow the shoe could be on the other foot.”)
Several ethics bodies have formally concurred in whole or in part with ABA Opinion 92-368. For example, in July 2002, the New York County Lawyers’ Association’s Ethics Committee issued Opinion 730 (“NY County Opinion 730”), concluding that the absence of a directive regarding misdirected communications in New York’s Code of Professional Responsibility did not relieve lawyers of the obligation to “share responsibility for ensuring that the fundamental principle that client confidences be preserved – the most basic tenet of the attorney-client relationship – is respected . . . .” And in 1995, the Association of the Bar of the City of New York’s Committee on Professional Responsibility issued a report, “Ethical Obligations Arising Out of an Attorney’s Receipt of Inadvertently Disclosed Information,” Record of the Association of the Bar of the City of New York, Vol. 50, No. 6, p. 660 (1995) (the “1995 ABCNY Report”). The 1995 ABCNY Report recommended a new Disciplinary Rule codifying the position advanced in ABA Opinion 92-368. The new rule would have required attorneys receiving inadvertently-sent documents to refrain from examining the documents, notify the sender, and abide the sending party’s instructions regarding return or destruction.
2. Notify Only
But when the ABA itself adopted a new ABA Model Rule of Professional Conduct addressing inadvertent disclosure, it did not impose obligations as broad as those set forth in ABA Opinion 92-368. In February 2002, the ABA adopted Model Rule 4.4(b), which provides: “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” While Model Rule 4.4(b), like ABA Opinion 92-368, requires the lawyer to notify the sender of the receipt of a misdirected document, it does not obligate the lawyer to take any further steps. The Comment to Model Rule 4.4 suggests that if any additional obligation exists, it exists solely by virtue of substantive law, not principles of legal ethics.
A number of state bar ethics opinions similarly only require notification. See, e.g., Maine Prof. Ethics Comm. of the Bd. of Overseers, Opinion 146 (Dec. 9, 1994); Florida Bar Ass’n Comm. on Prof’l Ethics Opinion 93-3 (Feb. 7, 1994). Still others have endorsed alternative obligations, requiring notice and return when the receiving lawyer is aware that the disclosure is inadvertent (as per ABA Opinion 92-368), but requiring only notice (as per Model Rule 4.4(b)) when the receiving lawyer reviews a communication before realizing that its disclosure was inadvertent. See, e.g., Colorado Bar Ass’n Ethics Comm. Opinion 108 (May 20, 2000).
At least one ethics body has opined that a lawyer who receives a misdirected communication has no obligation to notify the sender or to abide by the sender’s request for return of all copies of the communication. See Philadelphia Bar Ass’n Prof. Guidance Comm. Opinion 94-3 (June 1994). The Philadelphia opinion appears to be based on the view, although not explicitly stated, that the ethical duty to represent one’s client zealously within the bounds of the law not only permits but requires the lawyer to employ all resources at the lawyer’s disposal, including those obtained due to another person’s mistake, so long as those resources were obtained without the lawyer’s wrongdoing. See generally David J. Stanoch, Comment, “Finders . . . Weepers?”: Clarifying a Pennsylvania’s Lawyer’s Obligations to Return Inadvertent Disclosures, Even After a New ABA Rule 4.4(b), 75 Temple L. Rev. 657 (2002). See also Monroe Freedman, The Errant Fax, Legal Times, Jan. 23, 1995, at 26 (advocating that inadvertently disclosed communications should be exploited for the benefit of a receiving attorney’s clients).
B. Use Of Information Contained In The Communication
Opinions also are divided on the questions whether the receiving lawyer may review the communication and whether the lawyer may use the information learned from that review. Some opinions, such as ABA Opinion 92-368 and NY County Opinion 730, decline to draw any distinction for ethical purposes between the lawyer’s obligations vis-a-vis the physical communication, on the one hand, and the information contained therein, on the other. See ABA Opinion 92-368 (“Any attempt by the receiving lawyer to use the missent letter for his own purposes would thus constitute an ‘unauthorized use.'”); see also Virginia Legal Ethics and Unauthorized Practice Opinion 1702 (Nov. 24, 1997).
Others, however, draw such a distinction and permit use, at least to the extent the lawyer has reviewed the communication in good faith before realizing it was missent. See, e.g., Colorado Opinion 108; D.C. Bar Legal Ethics Comm. Opinion 256 (May 16, 1995); Illinois State Bar Ass’n Advisory Opinion 98-04 (Jan. 1999); Kentucky Bar Ass’n Ethics Opinion E-374 (1995); Maine Opinion 146 (December 9, 1994). Some of these opinions were influenced by cases holding that even an inadvertent disclosure of a privileged communication can, under certain circumstances, waive the attorney-client privilege such that an adversary may review and use information to which they would not otherwise have access. See, e.g., Maine Opinion 146 at 5 (“So long as use of the memorandum is permitted by the Federal Rules of Evidence or Procedure, use of the memorandum cannot be said to be prejudicial to our adversary system of litigation.”) (footnote omitted); D.C. Ethics Opinion 256. Other bodies that prohibit retention but permit use have noted the practical problem of requiring lawyers to “unlearn” information they already have learned through review of the misdirected communication. See, e.g., D.C. Opinion 256; Ohio Opinion 93-11 (“Once confidential material has been examined even briefly, the information cannot be purged from the mind of the attorney who inadvertently receives it.”).
Similarly, the rule proposed by the 1995 ABCNY Report did not proscribe use and put the burden on the sender “to seek court protection to limit the recipient’s use of the document.” Meanwhile, one of the most recent states to adopt a formal rule regarding inadvertent disclosure has determined that a receiving lawyer should notify the sender and refrain from use “for a reasonable period of time in order to permit the sender to take protective measures.” Arizona State Supreme Court Rule of Prof’l Conduct 42, ER 4.4(b) (eff. Dec. 1, 2003). 2
As we are addressing ethical obligations of attorneys in New York, we ultimately must look to New York’s Code of Professional Responsibility to determine if it gives rise to obligations similar to or different than those recognized in the variety of opinions described above. Guidance on this subject is particularly important given that the Code has no specific rule addressing the issue and eight years have passed since the 1995 ABCNY Report recommended adopting such a rule.
As explained further below, we conclude that a receiving lawyer has obligations under the New York Code to notify, return and refrain from review of inadvertent disclosures, particularly when considering the duties of a lawyer not to engage in conduct prejudicial to the administration of justice, to preserve client confidences and secrets and to represent clients with zeal but within the confines of the law. At the same time, we concur with those authorities finding that a blanket proscription on use of inadvertent disclosures in all situations extends too far. Accordingly, we acknowledge that there are limited circumstances where ethical rules alone do not bar use of such information, particularly where, as more specifically set forth below, the receiving attorney has a good faith basis to argue that inadvertent disclosure has resulted in waiver of a privilege or where the receiving attorney has been exposed to confidential information prior to knowing or having reason to know that the communication was misdirected.
A. Foundations in the Code for Obligations Triggered By Receipt of Inadvertent Disclosures.
Inadvertent disclosure brings into tension two fundamental rules of the Code: the duty to preserve confidences and secrets of a client pursuant to DR 4-101 and the duty to zealously represent a client by using reasonably available means permitted by law under DR 7-101(A). The Committee believes that this tension can be resolved by focusing the issues presented by inadvertent disclosure through the lens of DR 1-102(A)(5), which prohibits “engag[ing] in conduct that is prejudicial to the administration of justice.”
Obligations of a receiving attorney with respect to a misdirected communication containing confidences or secrets cannot rest squarely on the duties imposed by DR 4-101. After all, the receiving attorney has no attorney-client relationship with the client whose information is exposed. The Code nevertheless recognizes that preservation of client confidences and secrets is crucial to stability of the legal system. As EC 4-1 states, “the proper functioning of the legal system require[s] the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer.” Failing to notify the sender of an inadvertent disclosure would deprive the sending attorney of the opportunity to seek appropriate protection for the disclosed information and thereby prejudice the administration of justice. Likewise, reading beyond the point where the lawyer knows or reasonably should know that the communication is an inadvertent disclosure of confidences or secrets undermines the duty incumbent on all attorneys pursuant to DR 1-102(A)(5) to respect the foundations on which our legal system is based.
Other opinions construing DR 1-102(A)(5) lend support to the conclusion that a lawyer receiving an inadvertent communication may not freely exploit it without undermining the administration of justice. For example, this Committee previously has opined that when a lawyer receives from his client adversarial attorney-client communications that the client, without the attorney’s knowledge, intercepted, the lawyer must notify the adversary attorney and return the communications. ABCNY Comm. Prof’l. Jud. Ethics Opinion 1989-1. As the Committee explained, “[h]aving such information gives the inquirer and his client an advantage that, however slight, they are not entitled to have, and to permit them to retain that advantage, of which the opposing party and counsel are unaware, would in the Committee’s opinion be prejudicial to the administration of justice and, therefore, ethically impermissible.”
Meanwhile, the New York State Bar Association’s Ethics Committee has opined that an attorney’s use of software to extract otherwise inaccessible information about the drafting history of an adversary’s e-mail or its attachments would be prejudicial to the administration of justice to the extent the technology could expose confidential information or secrets. New York State Opinion 749 (2001). Similarly, in New York State Opinion 700 (1998), the same committee concluded that accepting from an adversary’s former paralegal unsolicited information that disclosed the adversary’s confidences or secrets would prejudice the administration of justice. Though the conduct at issue in these opinions was more active and deliberate than reviewing and using a misdelivered communication, the conduct that the State Bar ethics committee considered to be prejudicial to the administration of justice shares vital characteristics with the conduct considered here. In each instance, an attorney has reviewed information that the opposing party and their counsel do not want the receiving attorney to see; and, in each, the receiving attorney has gained access to the information without the opposing party’s knowledge or intent.
At the same time a lawyer must not engage in conduct prejudicial to the administration of justice, the same lawyer must fulfill the dictates of DR 7-101, entitled “Representing a Client Zealously,” to “seek the lawful objectives of the client through reasonably available means.” But that obligation is explicitly qualified: the “reasonably available means” must be those “permitted by law and the disciplinary rules.” DR 7-101(A)(1). It therefore is necessary to consider generally applicable legal principles in determining the extent, if any, to which the obligation to remain within the bounds of the law constrains a lawyer’s conduct upon receipt of a misdirected communication containing confidences or secrets.
This Committee’s review of relevant legal principles suggests that the ethical obligation of zeal does not require a lawyer to retain and/or use misdirected confidential communications. To the contrary, those principles direct the opposite. As the ABA Committee observed in Opinion 92-368, those who find or otherwise come into possession of lost property must, under the law of bailments, return it to the owner upon request. See, e.g., Jesse Dukeminier, Property, at 65, 83-86 (2d ed. 1988). That is also the rule outside the context of bailments. For example, when a bank mistakenly credits funds to the wrong account, principles of restitution require the recipient of the mistakenly transferred funds to notify the transmitting bank and to return them. American Law Institute, Restatement of the Law of Restitution § 126 (1937); Banque Worms v. BankAmerica Int’l, 77 N.Y.2d 362, 366-67, 570 N.E.2d 189, 191-92, 568 N.Y.S.2d 591 (1991).
The same is true for mail. Mail that has not reached its intended recipient, either because it has been misaddressed by the sender or misdelivered by the postal service, must be returned to the sender by the wrongful recipient as soon as they learn of the error. “Once it is clear to the unintended recipient that the letter has been misdelivered or misaddressed, he knows that he has no business opening the mail and then possessing it.” United States v. Coleman, 196 F.3d 83, 86 (2d Cir. 1999). Failures to return misdelivered mail have been the subject of successful federal criminal prosecutions. See, e.g., id.; United States v. Palmer, 864 F.2d 524 (7th Cir. 1988); United States v. Douglas, 668 F.2d 459 (10th Cir. 1982); United States v. Lavin, 567 F.2d 579 (3d Cir. 1977).
This Committee perceives no reason why the well-established principles applicable to misdirected property and communications should not apply in the context of legal ethics. From an ethical perspective, misdirected faxes and e-mail, on the one hand, and misdelivered mail, on the other, are identical. See D.C. Ethics Opinion 256 (“A [misdirected communication] comes to the lawyer with ‘notice’ that it does not belong to him. In that sense, it is little different than a wallet found on the street: if the finder knows that it does not belong to him, and should he appropriate to himself the wallet’s contents, the finder engages in the tort of conversion.”) Because established legal principles require a lawyer to return and not make use of mistransmitted funds or mail, so too the rules of legal ethics generally should require the lawyer to return and refrain from using a misdirected communication. 3
Note also should be taken of a provision appearing under Canon 9, entitled “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” Rule 9-102(C) specifically addresses a lawyer’s obligations with respect to funds or property belonging to another. Thus, a lawyer must “promptly notify a client or third person of the receipt of funds, securities or other properties in which the client or third party has an interest,” DR 9-102(C)(1), and, if requested, similarly must “promptly pay or deliver” those funds or properties to the person entitled to receive them, DR 9-102(C)(4). As noted by a recent commentator, the Code does not define what is meant by “other properties” nor gives any indication that the rule was intended to apply to misdirected confidential communications or their content. Barry Tempkin, Errant E-Mail: Inadvertent Disclosure of Confidential Material Poses Dilemma, 230 New York Law Journal (Oct. 14, 2003). Nevertheless, these provisions reflect the Code’s acknowledgment of ethical principles consistent with the legal principles described above regarding misdirected mail and funds.
B. Use of Inadvertently Disclosed Confidences or Secrets
Notwithstanding the above precepts, an absolute rule requiring return or destruction of all copies and barring use of an inadvertently disclosed confidential communication in all circumstances would itself be prejudicial to the administration of justice. In two limited contexts, we find no ethical bar to use of inadvertently disclosed material.
First, lawyers should not be constrained in their right to argue that inadvertent disclosure, in appropriate circumstances, has waived the attorney-client or other applicable privilege. 4 See, e.g., New York Times Co. v. Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 172, 752 N.Y.S.2d 642, 646 (1st Dep’t 2002) (finding no waiver); S.E.C. v. Cassano, 189 F.R.D. 83, 86 (S.D.N.Y. 1999) (finding waiver). Ordinarily, to make such an argument, the attorney will not need to review or disclose the content of the inadvertent communication. None of the factors courts commonly employ in assessing whether a disclosure of privileged communication has resulted in a waiver of privilege requires the court to consider the communication’s content. See, e.g., New York Times Co., 300 A.D.2d at 172, 752 N.Y.S.2d at 645-46 (reciting factors); Cassano, 189 F.R.D. at 85 (same). There may, however, be instances where the content of the communication is germane to a waiver determination and in such an instance a lawyer should be free to provide the communication to the presiding tribunal for its consideration of the issue.
Likewise, there may be occasions when the communication does not in fact contain a confidence or secret and should be produced in connection with a litigated matter. The administration of justice would be prejudiced if a receiving attorney were not ethically permitted to bring to a tribunal’s attention a document that had been improperly held from production but which the attorney learned of only through inadvertent disclosure.
Thus, we conclude that a receiving lawyer may ethically retain a misdirected communication for the sole purpose of presenting it to a tribunal for in camera review, if the lawyer (1) promptly notifies the sending lawyer about the mistaken transmission, and, if requested, provides a copy to the sending lawyer, (2) believes in good faith, and in good faith anticipates arguing to the tribunal, that the inadvertent disclosure has waived the attorney-client or other applicable privilege or that the communication may not appropriately be withheld from production for any other reason, and (3) reasonably believes disclosing the communication to the tribunal is relevant to the argument that privilege has been waived or otherwise does not apply.
This limited permitted use does not, however, apply in the circumstance where a receiving attorney – prior to having received an inadvertent disclosure – is on notice that a confidential communication has been transmitted by mistake and should be returned without review to the sending attorney. In such a situation, there effectively has been no “disclosure” and the receiving attorney knows prior to receiving the communication that it contains confidences or secrets. See American Express v. Accu-Weather, Inc., 91 Civ. 6485, 1996 WL 346388 (S.D.N.Y. June 25, 1996) (favorably citing ABA Opinion 92-368 and sanctioning attorneys who ignored sending counsel’s instruction to return a not-yet-opened package of documents containing a privileged communication).
A more difficult question arises with respect to use of inadvertently disclosed information when the receiving attorney has reviewed part or all of the communication before having reason to know that the communication was not intended for that attorney. In many instances, an attorney should know before reviewing the content of a communication that it is a confidential communication intended for someone else and will be ethically proscribed from reviewing its content. In other instances, however, the lawyer will not know or have reason to know of the inadvertent disclosure until after having started to review the communication’s content. The lawyer thereby will have learned confidential information that cannot simply be erased from memory.
For example, suppose a lawyer receives a one-page fax saying, “Offer $100,000, but you have authority to settle for up to $300,000.” We believe it is not realistic to expect that the attorney, once being exposed to this information, can forget it and continue litigating or negotiating without the information influencing the attorney’s course of action. To put the attorney at ethical risk for using information that cannot be suppressed from knowledge potentially would penalize the innocent receiving attorney and their client for the error of another.
Likewise, there may be instances where the confidential information disclosed is of the type to which the Code does not accord full protection from disclosure. For example, DR 4-101(C)(3) permits a lawyer to reveal the intention of a client to commit a crime and the information necessary to prevent the crime. A blanket prohibition on use of inadvertently disclosed information would have the peculiar effect of according an individual’s intent to commit a crime greater protection when learned of through inadvertent disclosure than when disclosed to one’s own attorney. The administration of justice does not countenance such an outcome. Similar concerns would be raised if the misdirected communication revealed an intention of the sender or a third party to take harmful and wrongful steps against the receiving lawyer’s client in the future (e.g., as by destroying relevant documents or suborning perjury).
Nothing in this opinion, however, should preclude a sending attorney from seeking relief before a tribunal to prevent a receiving attorney from using inadvertently disclosed confidential information. Although ethical rules may not preclude use, governing law, rules of evidence, or other principles may limit or preclude use. Accordingly, it is essential – as an ethical matter – that a receiving attorney promptly notify the sending attorney of an inadvertent disclosure in order to give the sending attorney a reasonable opportunity to promptly take whatever steps he or she feels are necessary to prevent any further disclosure of the information at issue.
The above approach best harmonizes the Code’s concerns for the administration of justice, client confidences and secrets, and zealous representation. We recognize that critics may raise voices on both sides of the fence. Some might fear that an exception permitting even limited use of information learned from a misdirected communication will invite attorneys to read further in misdirected communications than they would read if they were not allowed to use the information at all. That is a valid concern but one which is tempered by the ethical obligations described in this opinion and which does not justify a blanket prohibition that otherwise prejudices the administration of justice.
On the other hand, some may advocate for unfettered use of inadvertent disclosures, arguing that this will fortify the attorney-client privilege (and consequently the administration of justice) by creating disincentives for careless disclosures. See, e.g., Int’l Digital Sys. Corp. v. Digital Equip. Corp., 120 F.R.D. 445, 450 (D. Mass. 1998) (“a strict rule that ‘inadvertent’ disclosure results in a waiver of the privilege would probably do more than anything else to instill in attorneys the need for effective precautions against such disclosure”). There is some merit to this point as well. The law is not without harsh consequences for law office administrative failures. Consider, for example, statutes of limitations and appellate deadlines may foreclose legal rights when there is no good cause to excuse an administrative lapse. But we believe the “incentive” rationale is overstated when the carelessness in question is as innocent and as difficult to deter as attaching the wrong file attachment to an e-mail or pressing the wrong speed dial button on a fax machine. The practice of law is not a card game or sport. Some administrative errors are unavoidable and should be corrected, not exploited. 5 See United States v. Rigas, No. 02 CR 1236, 2003 WL 22203721, at *8 (S.D.N.Y. Sept. 22, 2003) (citing favorably ABA Opinion 92-368 and observing that attorneys “bear responsibility for acting in accordance with ethical norms of the legal profession, independent of any incentives or disincentives . . .”).
Receipt of an inadvertent communication containing confidences or secrets triggers ethical obligations for the receiving attorney. A lawyer who receives such a communication should promptly notify the sender and refrain from further reading or listening to the communication and should follow the sender’s directions regarding destruction or return of the communication. If, however, the receiving attorney believes in good faith that the communication appropriately may be retained and used, the receiving attorney may, subject to the conditions set forth in this opinion, submit the communication for in camera consideration by a tribunal. Where the receiving attorney has been exposed to content of the communication prior to knowing or having reason to know that the communication was misdirected, the attorney is not barred, at least as an ethical matter, from using the information. However, it is essential as an ethical matter that a receiving attorney promptly notify the sending attorney of an inadvertent disclosure in order to give the sending attorney a reasonable opportunity to promptly take whatever steps he or she feels are necessary to prevent any further disclosure. 6 Following these directives fulfills the obligation not to engage in conduct prejudicial to the administration of justice and appropriately balances the interests in both preserving client confidences and secrets and zealously representing one’s own client.
- This Opinion addresses issues arising only from misdirected communications. It does not address questions arising from an attorney’s receipt of confidential information obtained by other means, such as when a third party intentionally provides confidential information. See, e.g., New York State Bar Ass’n Opinion 700 (1998) (curtailing actions of lawyer receiving unsolicited and unauthorized disclosure of confidential or secret information from former employee of adversary firm).
- New Jersey is another state that recently has adopted a formal rule regarding receipt of inadvertent disclosures. New Jersey Rule of Professional Conduct 4.4(b) (eff. Jan. 1, 2004) makes no distinction between confidential and non-confidential information and requires a receiving lawyer who has reasonable cause to believe the document was inadvertently sent to not read (or stop reading) the document, promptly notify the sender and return the document to the sender. The New Jersey rule does not address the question of use of information learned prior to the receiving lawyer’s having reasonable cause to believe the document was inadvertently sent.
- This Opinion is directed specifically to inadvertent communications containing confidences or secrets. We recognize, however, that much of the reasoning based on principles governing misdirected property and funds applies to misdirected communications of any type, not only those containing confidences or secrets. Indeed, those principles, along with respect for professional courtesy (see DR 7-101(A)(1)), suggest that attorneys should notify senders of and, if asked, return to them misdirected communications of any type. See, e.g., 1995 ABCNY Report (proposing rule encompassing any inadvertently produced document); Comments to ABA Model Rule 4.4(B) (“the obligation is the same regardless of whether the document appears confidential”). Because of the special concern attending client confidences and secrets, however, this Opinion focuses on those communications.
- This Opinion does not address whether an inadvertent disclosure in discovery during litigation does in fact waive the attorney-client privilege or any other privilege or protection but merely acknowledges that the argument has been made and accepted by courts. Moreover, we note the increasingly popular practice in litigation of entering into agreements containing explicit provisions as to how the parties will deal with documents inadvertently produced during discovery. This practice appears to be a useful means of establishing ground rules and clarifying the parties’ expectations, particularly where, as discussed further below, ethics rules and legal principles do not provide easy answers in all circumstances.
- The Committee stresses, however, that attorneys who review or use misdirected communications in violation described here should not ordinarily be disqualified. See ABCNY Formal Opinion 2001-1 (receipt of unsolicited e-mail communication from potential client does not require disqualification of the attorney from continuing to represent a different client with adverse interests). Just as the receiving lawyer should not be able to exploit the sending lawyer’s error, so too the sending lawyer should not be able to exploit their own error. Moreover, were disqualification to be among the available sanctions for violating the obligation not to review misdirected communications, that possibility could create incentives for improper gamesmanship. Attorneys and/or their clients might deliberately send otherwise confidential communications to their adversaries or their counsel, claiming mistake, in the hope of “tainting” the receiving lawyers and thereby establishing a basis for disqualification. Though such a tactic would be dishonest and worthy of sanctions, the deliberate nature of such misconduct might be difficult to detect. Accordingly, the Committee believes the best way to prevent such deception is to eliminate the possibility that it might be advantageous.
- In any event, and as observed earlier, even if ethical rules do not foreclose an attorney from using inadvertently disclosed confidential information in particular circumstances, substantive or evidentiary legal principles may do so. Accordingly, any attorney contemplating use of such information should proceed with caution.
Issued: December, 2003