This article considers the dilemma lawyers face if they inadvertently receive confidential or privileged information relating to adversaries or third parties through no fault of their own. Simply put, there is no consistency on this subject among the relevant rules of professional conduct, the multiple ethics opinions interpreting those rules, the applicable rules of evidence, and the case law governing when privilege is—and is not—deemed to be waived and what, if any, uses the receiving lawyer may make of inadvertently transmitted communications. As a result, when an inadvertent disclosure is made, the receiving lawyer may face inconsistent outcomes in the determining the permissible use of the information, whether or not she should be disqualified as a result of learning the information, or whether she should face professional discipline.

Origins

The problem essentially began in 1992, when the American Bar Association Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 92-368 (since withdrawn, as explained below), the declaratory determination of which was: “A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide by the instructions of the lawyer who sent them.”

So, where is the problem with that? In order to answer the question, we need to consider where these three duties (to refrain from reading; to notify the sender; and to abide by the sender’s instructions) are derived—and what opposing duties exist, both in the realm of attorney ethics and the wider law.

The ABA committee could not itself find a clear basis in the Model Rules (as they then existed) for these “duties.” As the opinion itself states, “A satisfactory answer to the question posed cannot be drawn from a narrow, literalistic reading of the black letter of the Model Rules.” Nevertheless, undeterred by this basic problem, the committee discerned five principles from which it stated these duties were derived: “(i) the importance the Model Rules give to maintaining client confidentiality, (ii) the law governing waiver of the attorney-client privilege, (iii) the law governing missent property, (iv) the similarity between the circumstances here addressed and other conduct the profession universally condemns, and (v) the receiving lawyer’s obligations to his client.”

The trouble with these principles, and the duties to be derived from them, is twofold. First, as expressed in the second of the five principles, whether or not information is protected is a matter of law, not ethics rules. Second, as expressed by the fifth principle, the receiving lawyer may have explicit duties—such as to keep her client fully informed of all material developments in the matter, and the duty to represent the client diligently and competently—which explicitly point the receiving lawyer in precisely the opposite direction to the three duties asserted in the opinion—to refrain from reading; to notify the sender; and to abide by the sender’s instructions.

If the receiving lawyer has these two obligations in the forefront of her mind, her evident inclination would be to read the material, disclose it to the client, and, potentially, use it for the benefit of her client in the matter. Notably, in a recent response to an inquiry the Pennsylvania Bar Association explicitly adopted this position (Inquiry 2011-010), opining that the receiving lawyer had a “duty to reveal” the message to the lawyer’s client in keeping with the duty of competent representation and the duty to keep the client fully informed.

Following the issuance of ABA Formal Op. 92-368, state bar ethics committees were quick to weigh in. For example, in New York, the New York County Lawyers’ Association Committee on Professional Ethics issued Opinion 730, which essentially reached the same conclusion as Formal Op. ABA 92-368. In a more nuanced opinion, the New York City Bar (then known as the Association of the Bar of the City of New York) 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.” (Emphasis added.)

The city bar opinion is notable in that it backs away from the three absolute duties expressed in ABA Formal Op. 92-368, particularly as to the second and third principles it expresses, highlighted above.

Meanwhile, the debate continued as to whether the three duties set forth in ABA Formal Op. 92-368 were appropriate statements of professional responsibility, either intrinsically or because of the ways in which they often directly contradict applicable case law and the rules of evidence. As a consequence, in the last major revision of the ABA Model Rules, a new Rule 4.4(b) was adopted which reduced the ethical duties from three to one, leaving in place only the duty to notify the sender of the inadvertent transmission. As a result of that change, in 2005 the American Bar Association Committee on Ethics and Professional Responsibility withdrew ABA Formal Op. 92-368 via ABA Formal Opinion 05-437.

Debate in New York

Importantly for New York lawyers, this state’s adoption of the Rules of Professional Conduct in 2009 included Rule 4.4(b), which in New York provides as follows: “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.”

The Comments the New York State Bar Association issued in conjunction with Rule 4.4(b) are, in this writer’s view, more helpful than the above described ethics opinions. The Comments state as follows:

[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent, produced, or otherwise inadvertently made available by opposing parties or their lawyers. One way to resolve this situation is for lawyers to enter into agreements containing explicit provisions as to how the parties will deal with inadvertently sent documents. In the absence of such an agreement, however, if a lawyer knows or reasonably should know that such a document was sent inadvertently, this Rule requires only that the lawyer promptly notify the sender in order to permit that person to take protective measures. Although this Rule does not require that the lawyer refrain from reading or continuing to read the document, a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, “document” includes email and other electronically stored information subject to being read or put into readable form.

[3] Refraining from reading or continuing to read a document once a lawyer realizes that it was inadvertently sent to the wrong address and returning the document to the sender honors the policy of these Rules to protect the principles of client confidentiality. Because there are circumstances where a lawyer’s ethical obligations should not bar use of the information obtained from an inadvertently sent document, however, this Rule does not subject a lawyer to professional discipline for reading and using that information. Nevertheless, substantive law or procedural rules may require a lawyer to refrain from reading an inadvertently sent document, or to return the document to the sender, or both. Accordingly, in deciding whether to retain or use an inadvertently received document, some lawyers may take into account whether the attorney-client privilege would attach. But if applicable law or rules do not address the situation, decisions to refrain from reading such documents or to return them, or both, are matters of professional judgment reserved to the lawyer. See Rules 1.2, 1.4.

Even though the earlier New York ethics opinions have not been withdrawn, Rule 4.4(b) and the guidance afforded by the above Comments clearly supersedes them.

July Proposal

But apparently, the debate still is not over in New York. In July 2011, the state bar Committee on Attorney Professionalism proposed to the state bar’s Committee on Attorney Standards and Conduct (COSAC) that Rule 4.4(b) be replaced with a rule that would impose upon lawyers receiving inadvertently communicated material, not three, but five duties: “(i) [they] shall not read the document or, if the lawyer already has begun to do so, shall stop reading the document; (ii) shall notify the author or sender of the document of its receipt; (iii) shall promptly return, sequester, or, to the extent reasonably practicable, destroy the document and any copies of it; (iv) shall not use or disclose the confidential information contained in the document; and (v) shall take reasonable steps to retrieve any copies of the document if the lawyer disclosed it before having reasonable cause to believe that the document contained confidential information.” This proposal follows an article setting out the arguments in favor of a more comprehensive rule, “Inadvertent Disclosure and Rule 4.4(b)’s Erosion of Attorney Professionalism,” by James M. Altman, NYSBA Journal, November/December 2010 issue, 21.

In this writer’s view, issuance of the rule the state bar’s Committee on Attorney Professionalism is proposing would be a step backwards. The conflict of principles among case law, the rules of evidence, and the internally conflicting rules of professional conduct—between the duties owed to clients and the duties articulated in the proposed rules—are profound. It is a mistake to impose multiple duties on lawyers to act in ways that may in fact conflict not only with duties to their clients, but also duties as articulated in the applicable rules of evidence (such as Rule 502 of the Federal Rules of Evidence, which creates an entire protocol for dealing with many of these situations), and the case law (which itself varies among the states).

Indeed, even the limited duty to notify the sender places a burden upon the innocent recipient, albeit a small one—so that the argument could be made that Rule 4.4(b) should be removed and not replaced at all. However, it is also the case that Rule 4.4(b) probably represents a consensus of thinking on the issue, and can therefore properly remain as an ethical duty—because it is consistent, and not in conflict, with the applicable law.

A profoundly important argument for limiting the scope of lawyers’ ethical obligations in these situations is the unfairness of making the “innocent” lawyers who receive such communications potentially subject to professional discipline in situations where they were not responsible for creating the problem. This consideration was undoubtedly behind COSAC’s recommendation that New York should adopt Rule 4.4(b) as it existed in the ABA Model Rules. While some have argued that Rule 4.4(b), as adopted, is simply too vague, the consensus among the proponents of the rule is that vagueness is preferable to the consequences that would flow from any broader rule. Meanwhile, as this debate continues, New York lawyers should be mindful of Rule 4.4(b) as it now stands, and can be guided by the sensible Comments that accompany the rule.

Anthony E. Davis is a partner at Hinshaw & Culbertson and a past president of the Association of Professional Responsibility Lawyers.