Inadvertent disclosures of documents throw up questions as to what steps the sender must take to stop such disclosure and what obligations the recipient has.
By David N. Hofstein, Shareholder & Scott J.G. Finger, Attorney
Use of the internet has significantly increased the speed with which lawyers can communicate. With increased speed comes the risk of making a mistake, including transmitting information to an unintended recipient, otherwise known as making an “inadvertent disclosure.”
Incidents of inadvertent disclosure create issues for both the sender and recipient, including determining what steps the sender must take to prevent such disclosure and what obligations the recipient has. In recent years, various American Bar Association and state ethics opinions, as well as changes to the Model Rules and various states’ rules of professional conduct, have narrowed options and somewhat clarified responsibilities.[1]
Under the Model Rules, including Comment [2] to Rule 4.4(b)[2], and ABA opinions, including ABA Formal Opinion 94-413, electronic communications should be regarded as subject to the same expectation of privacy as other means of communication and the word “document” at it appears in Rule 4.4(b) includes e-mail or other modes of electronic transmission.
Inadvertent Disclosures: The Range of Recipient’s Options
A lawyer receiving a document that he or she was not intended to receive is generally confronted with a range of options, from immediately returning the document to the sending party to utilizing the document as evidence against an opposing party in pending litigation. Under Rule 4.4(b) of the Model Rules, the lawyer must at least inform the sending party of receipt of the document. Rule 4.4(b) reflects the conflict between the recipient’s obligation of zealous representation of the client and acknowledging the confidential relationship between the opposing party and his or her client. Since 2005, ABA ethics opinions note that Rule 4.4(b) solidifies the recipient’s obligation to inform the disclosing attorney, but an attorney is no longer explicitly prevented from examining the materials or required to comply with instructions to return or destroy the materials.
Under Rule 4.4(b), a lawyer may consider whether to utilize the document to the advantage of the client, and may look to other rules for guidance as to whether the document has lost its privileged status, an issue considered under Rule 1.6 in dealing with safeguarding confidential information, and under Rule 1.3, in obligating the lawyer to act with diligence in representing a client.
An analysis that looks to issues of confidentiality considers the possibility that by transmitting the document to a party not privy to the confidential relationship between the lawyer and client, the lawyer and party may have waived the confidential status of the relationship. On the other hand, an argument that maintains that there is no waiver emphasizes that, first, the client is the holder of the privilege and an act of the attorney without the client’s consent cannot waive the privilege, and, second, that an inadvertent act, by its nature, should not waive the privilege.
Three Schools of Thought on Privilege Waiver
There are three schools of thought dealing with whether privilege has been waived due to inadvertent disclosure as noted by Thomas G. Wilkinson and Marlo Pagano-Kelleher in Inadvertent Disclosure of Privileged Documents: Waiver and Ethical Issues, The Attorney Client Privilege, DRI Defense Library Series (2002). While the “Absolute Waiver” and “Never Waived” approaches are inflexible, the third approach, known as the “Middle-Line” approach or “Five-Factor Test” looks to the circumstances surrounding the disclosure. Under the latter approach, courts may assess whether the disclosure was genuinely inadvertent, and, if so, may find that privilege has not been waived, or courts may look to whether there was a reasonable excuse for the inadvertent disclosure, and, where reasonable precautions were not taken, may find that the privilege has been waived. Similarly, other courts have applied a five-factor test to the disclosure of privileged documents to determine if privilege is waived.
Ethics opinions also often consider the recipient lawyer’s obligation of zealous advocacy to his or her own client. While many opinions recognize that a lawyer owes a duty to seek every advantage on behalf of a client, ABA Formal Opinion 92-368 found that zealous representation does not require capitalizing on every error of opposing counsel. As Rule 4.4(b) does not answer the question of whether the recipient lawyer may use the document to the advantage of the client, it similarly does not indicate whether a lawyer must inform the client of receipt of the document, and, if the lawyer does, whether the lawyer must comply with the client’s instructions.
It is arguably good practice for the recipient lawyer to always advise the client of the developing situation and the decisions made, including consideration of the professional courtesy extended to opposing counsel of returning an errant document. Of course, once the client is aware of the disclosure, the lawyer may be confronted with the dilemma of following the client’s instructions if they are contrary to his or her own professional judgment and may potentially have to submit the issue to the court or withdraw from the case.
Claiming Privilege and Confidentiality in Inadvertent Disclosures
Given the limited explicit restrictions on the recipient’s use of inadvertently disclosed information, it is even more critical for a lawyer to take extra precautions. For the sender, one method for attempting to place a more affirmative obligation on the recipient is to place warnings on fax cover sheets or at the bottom of e-mails indicating that the attached document is privileged and confidential and requesting that certain steps be taken in the event of inadvertent transmission. Furthermore, the sender should consider taking the following precautions: (1) in e-mail preferences, opt not to send an e-mail immediately after spell check is completed; (2) count the pages to be faxed twice; (3) double check every e-mail address in the drop-down mail menu against the e-mail address in the firm’s contact directory; and (4) forward e-mail to the client after it has been sent to opposing counsel, rather than copying the client, to prevent “reply to all” mishaps which might mistakenly reveal confidential information.
As for the recipient of unintentionally disclosed information, for now the best approach is to follow “the golden rule”: the recipient should take whatever action he or she would hope the inadvertent discloser would take should their roles be reversed.
David N. Hofstein is a shareholder and Scott J.G. Finger is an associate at the Philadelphia-based domestic relations firm of Hofstein Weiner & Levit
[1] The Model Rules provide only guidance and are not binding. Practitioners should consult the specific Rules of Professional Conduct for their individual jurisdictions. In May of 2011, the ABA Commission on Ethics presented proposed changes to clarify Model Rules regarding confidentiality and technology. Currently these changes are draft proposals and have not been formally adopted. The proposed changes can be reviewed on the Ethics Commission’s website: http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html).
[2] Rule 4.4(b) provides as follows: 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.
