Ethics Update: Inadvertent Disclosure of Confidential Material
In 2002, the American Bar Association proposed Model Rule of Professional Conduct 4.4(b) which addresses the receipt of inadvertently disclosed confidential information. Model Rule 4.4(b) 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.”[1] This rule does not go so far as to place any further obligations upon the receiver of the information.
For example, the rule does not require the lawyer who receives the information to return the document, nor does it speak to whether the lawyer may use the document or disclose its contents to his or her client. In the past, the ABA addressed these additional issues in Formal Ethics Opinion 92-368 (“FEO 368”), wherein the ABA commented that the receiving lawyer had an obligation to return the inadvertently disclosed document to the opposing counsel and to refrain from either using or disclosing the contents of the document. The ABA issued this opinion in 1992.
Since then, however, inadvertent disclosure has become an issue that has seen dramatic changes in the past decade, due primarily to the exponential growth in the use of technology in the practice of law. Gone are the days when an attorney producing a stack of documents reviews each document by placing his thumb on each page as he prepares his response. Now documents are reviewed online in computerized databases, or are received by fax and email. Often, documents are transmitted by the client as a pdf file that is attached to an email that may contain a lengthy opinion of the client that is intended only for his or her lawyer. In addition, with the ever increasing pace of litigation, more duties are being delegated to less experienced attorneys and/or paralegals who may not, through lack of knowledge of the case or experience, recognize a communication as one that should remain confidential and, in fact, is privileged by the attorney-client or work product privilege.
In addition, following its issuance, FEO 368 underwent significant scrutiny and generated significant debate. Some argued that FEO 368 adopted a position on substantive issues of law and did not rely solely upon an interpretation of the Model Rules of Conduct.[2] For example, FEO 368 adopts one line of cases often recognized in the substantive area of waiver of privilege, and ignores another accepted position of waiver. Some jurisdictions consistently deem that once disclosure occurs, the attorney client privilege is waived and the receiving lawyer may utilize and disclose to his client the material contained within the document.[3] On the other hand, other jurisdictions guard the waiver of privilege much more stringently and limit waiver of the privilege only to those circumstances when the producing lawyer knew of the disclosure and the only prerequisite to retaining the privilege is to demonstrate that the disclosure was inadvertent.[4] Clearly, FEO 368 adopted a position essentially consistent with one line of cases over another.
In 2005, the ABA issued a new Formal Ethics Opinion 05-437 that is more consistent with the language of Model Rule 4.4(b), and to the extent this opinion is inconsistent with FEO 368, FEO 368 is withdrawn.[5] FEO 437 now leaves to the law of each jurisdiction the obligations that a receiving lawyer must meet.
So, what is an ethical, yet zealous lawyer to do? Lawyers are trained to advocate to their best ability to secure a win for the their clients. Indeed, one can imagine the benefit that could be gained from having the “smoking gun” delivered to your desktop. The question is not only can the bell be unrung, but whether it should be? According to FEO 437, this determination is no longer guided by the Model Rules, or any ethical opinions pronounced by the ABA . Rule 4.4(b) leaves the question open, as does FEO 437.
Some jurisdictions recognize the tension between professional courtesy and diligent representation. For example, both the Maryland Bar Association and the Virginia Bar Association have opined that a lawyer should be able to use, for the benefit of his client, documents that come to his attention, and there exists no obligation to notify opposing counsel about the document.[6] However, this is not a universally accepted position on this issue. At present, a minority of jurisdictions have adopted Model Rule 4.4(b) which at a minimum requires notification. Indeed, at least one state, New Jersey, has imposed a higher standard on the receiving lawyer, and obligates the lawyer not only to notify the sender, but to also stop reading the document when the privileged nature becomes apparent and return the document to the sender.[7]
It is too early to determine what the universally accepted approach, if any, to this issue will be. Many states are only now in the process of reviewing the 2002 Amendments. Accordingly, in proceeding ahead when receiving a document, lawyers should carefully review the law of their own jurisdictions.
Many jurisdictions review waiver of attorney client privilege on a case by case basis, and multiple factors are concerned. These factors provide insight, however, into what steps lawyers can take when undergoing client representation. Courts often consider whether (1) the sender took precautions to prevent inadvertent disclosure; (2) the number of disclosures; (3) the extent of the disclosure; (4) time and steps taken to correct the disclosure; and (5) the interests of justice.[8] Thus, as a sender of documents, one should take diligent steps in making sure the process of review and subsequent production can withstand scrutiny. In addition, upon notification that a disclosure has occurred, act promptly to obtain the document. Sending a formal written request immediately and pursuing court action if necessary are imperative. Last, some commentators suggest entering into a non-waiver agreement at the outset of litigation.[9] The agreement would contemplate that the producing party could demand the return of documents upon recognition of the inadvertent disclosure. Such agreements could be made along with standard confidentiality agreements and agreed upon protective orders.
In sum, with the apparent lessening of obligations imposed by the ABA upon the receiving lawyer, more stringent requirements may be imposed upon lawyers producing documents and simply hitting the send button. While professional courtesies are being recognized, it is ever more apparent, and rightfully so, that the ultimate question in the law is what best serves the client. Given the recent change in the ABA’s position, it is clear that lawyers are expected to be courteous to their colleagues, be diligent in their own practices, and to zealously represent their clients.
Bridget Papalia and Dick Goehler are attorneys in the First Amendment, Media & Advertising Law Practice Group of Frost Brown Todd LLC. Bridget practices in the Firm’s Louisville, Kentucky office, and Dick practices in Cincinnati, Ohio .
[1] MODEL RULES OF PROF’L CONDUCT R. 4.4(B).
[2] “Ethics Update”, ALAS Loss Prevention Journal, Winter 2006, p. 24.
[3] LHarmony Golde U.S.A. , Inc. v. FASA Corp., 169 F.R.D. 113, 117 N.D. Ill. 1996; Gray v. Bicknell, 86 F.3d 1472 (8th Cir. 1996).
[4] Hays v. King, 835 A.2d 953,966 (Conn. 2003); Berg Elec., Inc. v. Molex, Inc., 875 F. Supp. 261, 263 (D. Del. 1995).
[5] Formal Ethics Opinion, ABA, 05-437.
[6] Maryland Bar Association Op. 89-53(1989); Virginia Bar Association Op. 1076 (1988); see also Temkin, Barry R. ,“Errant E-Mail; Inadvertent Disclosure of Confidential Material Poses Dilemma, New York Law Journal, October 14, 2003 , Tuesday.
[7] See Kinsella v. NYT Television, 370 NJ Super 311, 851 A.2d 105 ( App. Div. 2004).
[8] Stanoch, David J. , “Finders . . . Weepers?” Clarifying a Pennsylvania Lawyer’s Obligations to Return Inadvertent Disclosures, Even After New ABA Rule 4.4(b).”, 75 Temp. L. Rev. 657, Fall 2002.
[9] See e.g., Id.
