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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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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?
OPINION: 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.
DISCUSSION:
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
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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).
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3. Retain
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
II. Analysis
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
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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.back to top
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
. . .").
III. Conclusion
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.
411880
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- 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
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