By David Hricik, Mercer Law School
In Opinion 2019-3 (May 16, 2019), the Association of the Bar of the City of New York, gave guidance on an issue on which most state ethics rules leave lawyers hanging. Under Model Rule 4.4(b), and similar state rules including the USPTO rules, a lawyer who receives a document related to the representation of a client, and knows or should know it was inadvertently sent, must notify the sender and then… the rule stops.
Obviously, the other side will (if the document has any significance) ask for the lawyer to return or delete it and, just as obviously, if the document has any significance the lawyer’s client will want the lawyer to not return it and, if it had been privileged, to argue it no longer is because it was inadvertently sent without due care.
This opinion provides a nice discussion of the background to various issues that arise with inadvertent receipt and some good historical background. As for specific guidance, my takeaways were as follows.
First, look to see if there is controlling law on what the lawyer can or must do. A protective order, a standing order, a local rule, agreement of counsel, or prior decision of the court may control, for example.
Second, the opinion points out that if a lawyer knows, before reading the document, that it may have been inadvertently sent, it is unclear if the lawyer must examine it or can, instead, stop and notify the sender and thereby avoid knowing whether the document had any significance to the client’s objectives. If the document has no significant bearing on the client’s objectives, the opinion states the lawyer may not have to let the client know of its receipt. Of course, that course presents risks to the lawyer.
Third, if the document is significant and there is no clear obligation as to what to do, the lawyer should inform the client of receipt. Then discussion is required because, as the opinion points out, use may entail risk. The client may not understand that disqualification, sanctions, or just an angry judge may result.
Fourth, if after consultation, the client “demands” the lawyer use the information, then the lawyer must assess the risk of doing so. For example, if the document contains opinion work product, using the information may be very risky since it is very difficult to waive protection over opinion work product. But if there is risk, the lawyer must assess it and can withdraw if use subjects the lawyer to discipline or sanctions. Without those risks, the client’s wishes should prevail, according to this opinion.
Finally, the opinion advised that a lawyer cannot choose not to use the information solely as a professional courtesy to the opposing party, or to personally benefit.
The question of what to do after a lawyer notifies the transmitting party of the mistake is one that the rules leave unanswered. This opinion provides a framework to analyze that issue, a fact-dependent problem at that!