If a lawyer receives an adverse party's privileged documents from someone not authorized to send them, must the lawyer stop reading and notify the other side?

Plain-English summary

The opinion revisits Formal Opinion 94-382, which had advised that a lawyer who unexpectedly receives an adverse party's privileged materials from an unauthorized source should refrain from reviewing them, notify the adverse party, and abide by that party's instructions. The committee reconsidered 94-382 after the amendment of Rule 4.4(b) and its comments and after the committee withdrew Formal Opinion 92-368, on which 94-382 was based.

The committee explains that 94-382 rested on principles of confidentiality, the inviolability of the attorney-client privilege, the law of bailments and missent property, and notions of common sense, reciprocity, and professional courtesy. It now concludes that those are not an appropriate basis for a formal opinion, "for which we look to the Rules themselves." As the companion Formal Opinion 05-437 had already explained, Rule 4.4(b) requires only that a lawyer who knows or reasonably should know a document was inadvertently sent promptly notify the sender; it does not require refraining from review or abiding by the sender's instructions. So even if intentionally-but-without-authorization sent materials were treated as "inadvertently sent," 94-382's instructions would not be supported by the Rule.

The committee further reasons that if the providing of the materials is not the result of the sender's inadvertence, Rule 4.4(b) does not apply at all to the situation 94-382 addressed, and the receiving lawyer is not required by the Model Rules to notify another party. Whether the lawyer may be required to take action is a matter of substantive law beyond the scope of Rule 4.4(b). The committee cautions that if the sender engaged in tortious or criminal conduct, a receiving lawyer who uses the materials may face court sanction or other liabilities, and that Rules 8.4(b) or 8.4(c) could be implicated by other circumstances, though those are matters of law outside the opinion's scope. Because the advice in 94-382 "is not supported by the Rules," it is withdrawn in its entirety.

In practice

Under this opinion, the Model Rules do not impose a stop-reading-and-notify duty when an adverse party's privileged materials arrive through an unauthorized leak rather than the sender's own inadvertence; the Rule 4.4(b) notice duty is tied to inadvertent transmission. The opinion is careful to leave separate legal consequences, such as court sanctions or tort or criminal exposure where the source acted wrongfully, to substantive law rather than the ethics rules. Because some states impose their own duties on receipt of such materials, the page reflects the committee's reading of the Model Rules rather than the rule in any particular jurisdiction.

Common questions

Q: A whistleblower sent me the other side's privileged file. Do the ethics rules make me stop reading and tell opposing counsel?

A: Not under the Model Rules. The opinion concludes that where the disclosure "is not the result of the sender's inadvertence, Rule 4.4(b) does not apply," and the Rules do not require refraining from review or notifying another party.

Q: Does the old ABA opinion still stand?

A: No. The committee states that "because the advice presented in Formal Opinion 94-382 is not supported by the Rules, the opinion is withdrawn in its entirety."

Q: So there are no consequences at all?

A: Not necessarily. The committee notes that 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)," and that a lawyer who uses materials obtained through the sender's wrongdoing may face court sanction or other liabilities.

Background and rules framework

The opinion interprets Model Rule 4.4(b), which requires a lawyer who receives an inadvertently sent document to promptly notify the sender, and explains why that rule does not reach materials disclosed through a third party's unauthorized act. It references Rule 1.6 (confidentiality) and Rules 8.4(b) and 8.4(c), and relies on Scope paragraphs [15] and [16] for the point that other law and broader ethical considerations operate outside the Rules. It builds on companion Formal Opinion 05-437.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.4(b) (duty to notify sender of an inadvertently sent document)
• ABA Model Rule 1.6 (confidentiality)
• ABA Model Rules 8.4(b), 8.4(c) (criminal conduct; dishonesty)
• Scope [15] and [16] (application of other law; moral and ethical considerations)

Cases:

• Maldonado v. New Jersey, 225 F.R.D. 120 (D.N.J. 2004)

Other opinions cited:

• ABA Formal Op. 94-382 (1994): withdrawn by this opinion
• ABA Formal Op. 92-368 (1992): the basis for 94-382, previously withdrawn
• ABA Formal Op. 05-437 (2005): inadvertent disclosure under amended Rule 4.4(b)

See also

• ABA Formal Op. 06-442: Review and Use of Metadata
• ABA Formal Op. 11-460: Duty on Receiving a Third Party's Email With Counsel
• ABA Formal Op. 483: Lawyers' Obligations After an Electronic Data Breach

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 06-440.pdf