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American Bar Association Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 92-368 (since withdrawn, as explained below), the declaratory determination of which was: “A lawyer who receives materials that on their face appear to be subject to the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.”
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