On Legal Ethics

The state does not have a California Rule of Professional Conduct on Inadvertent Disclosure. Accordingly, Rico v. Mitsubishi Motors (2007, 42 Cal. 4th, 807) established the standard in California, adopting the State Fund (State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644) standard as precedent, that a lawyer who inadvertently receives privileged documents may only read as much as is necessary in order to determine the documents are privileged.

Once that is determined, the attorney must notify the sender immediately and make an effort to resolve the situation. But because many lawyers practice multijurisdictionally, this month we will look at the way inadvertent disclosure is treated and discussed by the ABA Model Rules of Professional Conduct and related Ethics Opinions.

Inadvertent Receipt of Evidence: ABA Rule 4.4(b), Respect for Rights of Third Persons

While the inadvertent disclosure issue is discussed in Model Rule 4.4, we still do not get much guidance beyond the duty to "notify" the erring party. Rico is thus consistent with ABA Rule 4.4(b) in terms of the guidance being that whatever the receiving attorney decides to do with inadvertently produced information, they must give notice to the sender that they have it.

Model Rule 4.4 subsection (b) provides that: "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."

Comment [2] updates the scope of this rule by specifying that a "document" for purposes of this rule includes electronic communication such as e-mail that can be read or made into readable form. This is a much-needed clarification due to the volume of case-related e-mail lawyers routinely produce, including even filing motions electronically in many jurisdictions.

But the question remains, what is a lawyer to do beyond merely notifying the sender? Comment [2] explains that the point of notifying the sender is to allow them to take protective measures. The Comment declines, however, to opine on whether such production is a waiver of the privileged status of the document, and whether the lawyer is required to return the original document. In fact, Comment [3] states that this is a decision reserved to the lawyers' professional judgment.

On this note, Comment [3] references Model Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer, and Rule 1.4, Communication.

ABA ethics opinions

The American Bar Association Formal Opinion 05-437, Inadvertent Disclosure of Confidential Materials, states that a lawyer who receives a document from their opposition on a case that they either know or reasonably should know was inadvertently produced should "promptly notify the sender in order to permit the sender to take protective measures." This opinion explicitly provided that the ABA's previous ethics opinion on this subject, Formal Opinion 92-368, be withdrawn to the extent that it concluded otherwise, noting that it was enacted before the 2002 amendment to Rule 4.4.

In ABA Formal Opinion 06-440, Unsolicited Receipt of Privileged or Confidential Materials, the Committee withdrew Formal Opinion 94-382 in its entirety, which had dealt with a lawyer receiving confidential material from one not authorized to provide them, that the lawyer knew or could tell by the face of the materials were protected by the attorney-client privilege or covered by Rule 1.6, Confidentiality of Information. That opinion advised a lawyer in this situation not only to notify their opponent they had received the material, but also to refrain from viewing the material any further than necessary to see what it was, and to follow their opponent's instructions on how to proceed.

The Committee noted that Rule 4.4(b) did not include these extra requirements beyond notification when material was inadvertently sent. And further, the Committee pointed out in Formal Opinion 06-440 that if the material in question was intentionally sent but without authorization, Rule 4.4(b) did not apply because the transmission was not inadvertent. A lawyer in that position was not even required under the Model Rules to notify their opponent that they had received the information. They stated that the lawyer's responsibilities in this situation were beyond the scope of Rule 4.4(b), but did observe in a footnote that if the sender of confidential or privileged material has committed a crime or tortuous conduct by sending the information, a lawyer who receives and makes use of such information may be subject to court sanctions (citing Maldonado v. New Jersey (D.N.J. 2004) 225 F.R.D. 120.)

Please tune in next month when we examine additional ethics rules raised by the problem of inadvertent disclosure.