18.10. Dealing with Inadvertently Disclosed Information [Rule 4.4(b)]

Inadvertently disclosed information (information accidently sent to someone) requires two lawyers:  one to send the information and one to receive it.  In a prior topic we discussed that the sending lawyer has a duty to seek to ensure that information is not inadvertently disclosed.  However, such disclosure does occur.  A misdirected email or fax.  An email where the sender selects “reply all” and opposing counsel is included.  What is the obligation of the receiving lawyer when she realizes that she has received information that was not meant for her?

Rule 4.4(b) places a minimum requirement on the receiver.  The only obligation is to “promptly notify the sender.”  Once notified the sending lawyer can take steps to protect the interests of their client.  The ethics rules do not take a position on whether the information can subsequently be used by the receiving lawyer, leaving that issue to the law of evidence: 

Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived.  Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person.[1]

Courts and ethics opinions have reached varying conclusions on whether inadvertently disclosed information can be used by the receiving lawyer.  Historically, courts took one extreme (always waived) or the other (never waived).  More recently, courts and rules of evidence have adopted a middle ground.  This intermediate approach (adopted by the Restatement) is that:  “Waiver [of the attorney client privilege] does not result if the client or other disclosing person took precautions reasonable in the circumstances to guard against such disclosure.”[2]  What is reasonable depends on the circumstances.

Metadata

An area where there is little consensus is receipt of metadata (information embedded into the document).  An ABA opinion takes the position that it is not unethical for the receiving lawyer to mine metadata from documents received.  This approach puts the burden solely on the sending lawyer to remove metadata before sending.[3]  Some state bar associations however, have taken precisely the opposite position and held that it is unethical for a receiving lawyer to look at (mine) metadata. Jurisdictions that take this approach argue that taking affirmative steps to discover metadata is no different than ease dropping on a conversation between a lawyer and client.  In these jurisdictions mining for metadata is considered a dishonest act – and therefore a violation of Rule 8.4(c).[4]   

[1] ABA Rule 4.4, Comment [2].

[2] Restatement (Third) of the Law Governing Lawyers § 79, cmt. h.

[3] ABA Formal Ethics Op. 6-442 (2006).  States following the ABA approach include:  Colorado, Maryland, Minnesota, Oregon, Pennsylvania, Vermont, West Virginia and Wisconsin.

[4] States taking this approach include:  Alabama, Arizona, Florida, Maine, Mississippi, New Hampshire, New York, North Carolina, West Virginia, and Wisconsin.