"Return to Sender" Revisited

You have been representing a client in a civil matter. Pursuant to your recent discovery request, opposing counsel has delivered several boxes of documents to your office. As you sift through these documents, you discover that five of them appear to be privileged and should not have been released to you. What are your obligations under the circumstances?

Do you have an obligation to inform opposing counsel that you have received them?

Once you realize that the documents are privileged and confidential, are you obligated to return them unread to the opposing counsel?

Can you seek to have them introduced at trial?

Analysis

A lawyer's obligations when he or she is the recipient of an inadvertent disclosure have been a controversial subject in the world of legal ethics for many years. A number of ABA, state and local bar association ethics opinions have been written on this topic. Some of these opinions have counseled lawyers to return the items unread to the person who sent them, while others state that lawyers may keep them and may even seek to have them introduced at trial.

In February 2002, the ABA House of Delegates adopted an amendment to Model Rule 4.4 Respect for Rights of Third Persons that was proposed by the ABA Ethics 2000 Commission (E2k). This amendment added a new subpart (b) to the Rule that addressed a lawyer's obligations when he/she receives information inadvertently sent by the opposing party, which states as follows:

b) 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.

Paragraphs 2 and 3 of the Comment to subpart B state:

[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. 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 of 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 e-mail or other electronic modes of transmission subject to being read or put into readable form.

[3] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.;

Other E2k inspired amendments to the ABA Model Rules caution lawyers to avoid making inadvertent disclosures. See, paragraphs 16 and 17 of the Comment to Rule 1.6 that state as follows:

Acting Competently to Preserve Confidentiality

[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

For further information on the ABA Ethics 2000 Commission (E2k), visit the ABA E2k Web site. Also available online are the E2K's Official Reporter's explanation of changes memoranda for each Rule.

In large part because of the amendments to Rule 4.4, the ABA Standing Committee on Ethics and Professional Responsibility by Formal Opinions 05-437 [PDF] Inadvertent Disclosure of Confidential Materials: Withdrawal of Formal Opinion 92-368 November 10, 1992 (2005) and 06-440 [PDF] Unsolicited Receipt of Privileged or Confidential Materials: Withdrawal of Formal Opinions 94-382 (July 5, 1994) (2006) withdrew two earlier ABA Formal Ethics Opinions, 92-368 [PDF] Inadvertent Disclosure of Confidential Materials (1992) and 94-382 [PDF] Unsolicited Receipt of Privileged or Confidential Materials (1994).

The headnote to Formal Opinion 92-368 stated:

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 the instructions of the lawyer who sent them.

Explaining the rationale for the withdrawal of Formal Opinion 92-368, Formal Opinion 05-437 stated:

Rule 4.4(b) thus only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. The rule does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer.

Formal Opinion 94-382 addressed a situation where the lawyer is the recipient of documents that were sent to him by someone who intentionally sent them but who did not have the authority to do so. The headnote to Formal Opinion 94-382 stated:

A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be privileged or confidential should, upon recognizing the privileged or confidential nature of the materials, either refrain from reviewing such materials or review them only to the extent required to determine how appropriately to proceed; she should notify her adversary's lawyer that she has such materials and should either follow instructions of the adversary's lawyer with respect to the disposition of the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

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As part of its rationale for withdrawing 94-382, Formal Opinion 06-440 noted that since the scenario addressed in Formal Opinion 94-382 did not involve an inadvertent disclosure, Rule 4.4(b) did not apply:

...It further is our opinion that if the providing of the materials is not the result of the sender's inadvertence, Rule 4.4(b) does not apply to the factual situation addressed in Formal Opinion 94-382. A lawyer receiving materials under such circumstances is therefore not required to notify another party or that party's lawyer of receipt as a matter of compliance with the Model Rules. Whether a lawyer may be required to take any action in such an event is a matter of law beyond the scope of Rule 4.4(b).

State Bar ethics opinions

State Bar opinions take a varied approach to this issue. Some are in general agreement with the reasoning expressed in ABA Formal Opinions 92-368 and 94-382. See, e.g. Tennessee Formal Opinion 2004-F-150 [PDF] (2004), Virginia opinion 1702 (1997) (withdrawing an earlier Virginia Opinion 1076), Pennsylvania State Bar Opinion 99-150 (1999), Colorado Opinion 102 (1998), New York County Opinion 730 [PDF] (2002), Maine Board of Bar Overseers Opinion 172 (withdrawing an earlier Maine Opinion 146 that stated that the lawyer need not return the inadvertently produced documents due to v. Norman, Hanson & DeTroy, 1999 ME 196), District of Columbia Opinion 318 (2002) citing to District of Columbia Rule 1.15(b) and 8.4(c) examines a lawyer's obligations in situations where the document's privileged status is not readily apparent and also where the lawyer is not aware that the person who sent the document was not authorized to do so:

A receiving lawyer would not violate Rules 1.15(b) and 8.4(c) by reviewing and using the document whose source is unknown if: 1) its privileged status is not readily apparent on its face; and 2) receiving counsel did not know that the document came from someone who was not authorized to disclose it. If the privileged status of the document does not become apparent to receiving counsel until after the document has been reviewed, as reflected in D.C. Opinion 256, it is too late for receiving counsel to take corrective action because the information cannot be purged from his mind and his obligation of zealous representation under Rule 1.3 at that point trumps confidentiality concerns. The Committee takes no position with reference to the question whether review and use of documents that are confidential, but non-privileged would violate Rules 1.15(b) and 8.4(c) because it is outside the scope of the inquiry. District of Columbia Ethics opinion 318 (2002)

See also Maryland State Bar Opinion 00-04 (2000) and Kentucky Opinion E-374 [PDF] (Revised 1995):

Lawyers are strongly urged to return such materials unread, but if caselaw permits a lawyer is entitled to argue a good faith claim of "waiver" before the court in which an action is pending.

Other opinions state that a lawyer need not return the documents. There appears to be a trend in the more recently issued state bar opinions towards this line of reasoning especially in those states that have adopted versions of the E2k amendments to ABA Model Rule 4.4. See, e.g., Oregon Opinion 2005-150 [pdf] (2005). The Oregon Opinion analyzed the facts under Oregon Rule 4.4(b) which is identical to the ABA Model Rule 4.4(b). The opinion stated:

By its express terms, Oregon RPC 4.4(b) does not require the recipient of the document to return the original nor does it prohibit the recipient from openly claiming and litigating the right to retain the document if there is a nonfrivolous basis on which to do so. The purpose of the rule is to permit the sender to take protective measures; whether the recipient lawyer is required to return the documents or take other measures is a matter of law that is beyond the scope of the Oregon RPC as is the question of whether the privileged status of such documents have been waived.

See Also Pennsylvania State Bar Opinion 2005-22 (2005), Philadelphia Opinion 94-3 (1994), Utah State Bar Opinion 99-01 (resolution of whether receiving lawyer must return document is a question of law to be determined by a court; the lawyer does however have an obligation to inform the opposing lawyer hat he has received them), North Dakota Opinion 95-14 [pdf] (1995), Massachusetts Opinion 99-4 (1999)

Given the conflict among the authorities and assuming that resisting the request of opposing counsel will materially benefit Lawyer's client, the Committee is of the view that Lawyer's ethical obligation to "represent [his] client zealously within the bounds of the law," Mass. R. Prof. C. 1.3, requires him to reject the opposing counsel's request. Opposing counsel has the option to seek a court order if he believes that the legal issue should resolved in his client's favor, and if he does so, Lawyer should then argue before that tribunal that the contents of the letter are not protected.

Three state bar opinions have stated that where the documents are inadvertently produced by a public entity, the lawyer has no obligation to return them. See, Ohio Supreme Court Ethics Committee Opinion 93-11 (1993), Michigan State Bar Opinion RI-179 (1993) and Massachusetts Board of Bar Overseers Opinion 94-6 (1994).

Inadvertent Disclosure and Metadata

New York State Bar Opinion 749 (2001) addresses inadvertent disclosure issues in the context of "metadata" that can be transmitted with electronic documents, and states that lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents. New York State Bar Opinion 782 (2004) cautions lawyers to avoid making inadvertent metadata disclosures. For further information on metadata, see the January 2006 issue of Eye on Ethics titled, "What's the Meta with Metadata."

Court Rules, Caselaw and Treatises

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has recently proposed amendments to Rule 502 of the Federal Rules of Evidence as they pertain to inadvertent disclosure. A copy of their proposal is located here.

There is caselaw and several law review articles that have been written on the subject of inadvertent disclosure. Much of this material focuses on the legal questions of whether the inadvertent disclosure constitutes a waiver of the attorney client privilege, an issue on which ethics committees traditionally do not opine. For a summary and analysis of these materials, see, Rotunda and Dzienkowski, Legal Ethics, The Lawyer's Deskbook on Professional Responsibility Section 4.4-3 "Receipt of Privileged Documents Through Inadvertent Disclosure", West Publishing Corp 2006-2007. See Also the chapter entitled, "Respect for Rights of Third Persons" that appears at page 71:801 of the ABA/BNA Lawyers' Manual on Professional Conduct. This chapter was added to the Manual in February of 2004, and the annotations to Rule 4.4 from the 2003 edition of the ABA Annotated Model Rules of Professional Conduct, an excerpt from which states as follows:

CONSEQUENCES OF INADVERTENT DISCLOSURE

Courts faced with the problem of "unringing the bell" after inadvertent disclosure have dealt with the situation in a variety of ways. See, e.g., United States v. Gangi, 1 F.Supp.2d 256 (S.D.N.Y.1998) (prosecution waived privilege in lengthy prosecution memo inadvertently attached to indictment FBI agent handed to one of nineteen defense lawyers in case involving alleged organized-crime ties to Wall Street; judge ordered that appropriately redacted copies be given to all defense lawyers, to create level playing field); Resolution Trust Corp. v. First of Am. Bank, 868 F.Supp. 217 (W.D.Mich.1994) (plaintiff's lawyers must destroy all copies of letter inadvertently sent to them; disqualification not required); Aerojet-Gen. Corp. v. Transp. Indem. Ins., 22 Cal.Rptr.2d 862 (Ct.App.1993) (lawyer-client privilege shields against deliberate intrusion, not inadvertent disclosure; evidentiary sanctions against law firm for failing to timely disclose innocent receipt of privileged memorandum vacated); Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Décor, Inc., 724 So.2d 572 (Fla.Dist.Ct.App.1998) (counsel's "recalcitrance" in rectifying disclosure required disqualification), review dismissed, 729 So.2d 918 (Fla.1999); In re Meador, 968 S.W.2d 346 (Tex.1998) (discussing six factors trial court should consider in deciding whether disqualification necessary).
In one opinion, the Maryland Court of Appeals discussed the different approaches that have been taken in determining the consequences of inadvertent disclosure. Elkton Care Ctr. Assocs. LP v. Quality Care Mgmt., Inc., 805 A.2d 1177 (Md.2002). The court noted that the strict, or "waiver," test--under which inadvertent disclosure always constitutes a waiver--prevents the use of pretrial remedies that would preserve the privilege without causing any prejudice. The lenient, or "no-waiver," test--under which a lawyer's negligence cannot result in waiver of the client's privilege--does not provide incentive for lawyers to protect privileged documents. The court therefore adopted an "intermediate" test, calling for a fact-specific, case-by-case analysis to determine whether a privilege has been waived. According to the court, five factors must be examined: the reasonableness of the precautions taken to prevent inadvertent disclosure, the number of inadvertent disclosures, the extent of the disclosure, the type of measures taken to rectify the disclosure, and whether the overriding interests of justice would be served by relieving the party of its error.

WHEN RELEASE IS UNAUTHORIZED, AS OPPOSED TO INADVERTENT

Rule 4.4(b) addresses a lawyer's receipt of documents sent inadvertently; it does not address the receipt of documents of dubious provenance. ABA Formal Ethics Opinion 94-382 (1994) notes that from the receiving lawyer's point of view, the latter situation is distinguishable: "For example, the receiving lawyer may have a legitimate claim that the documents should have been, but were not, produced [in discovery.] Or the receiving lawyer may be able to assert that the documents were received from someone acting under the authority of a whistleblowing statute." The opinion concludes that the lawyer should review the material only to the extent necessary to determine how to proceed, notify opposing counsel, and either abide by opposing counsel's instructions or refrain from using the material until a court rules on it. See In re Shell Oil Refinery, 143 F.R.D. 105 (E.D.La.) (lawyer may not use confidential documents supplied to him by opponent's employee; must identify and produce documents to opponent), amended and reconsidered on other grounds, 144 F.R.D. 73 (E.D.La.1992); Smallman, The Purloined Communications Exception to Inadvertent Waiver: Publication and Preservation of Attorney-Client Privilege, 32 Tort & Ins. L.J. 32 (1997).

For additional information on this topic, see the additional resources page.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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