If a lawyer receives a confidential letter that the opposing party's own client mailed without their lawyer's knowledge, must the lawyer notify the opposing counsel?

Plain-English summary

The Committee considered a divorce case in which a party intentionally mailed a copy of a confidential letter from her own lawyer to the adverse party's lawyer, without her lawyer's knowledge. Neither the adverse party nor his lawyer solicited it, and the receiving lawyer's client asked that the receipt not be disclosed because it might harm his relationship with his estranged wife. The Committee was asked whether the receiving lawyer must, over his client's objection, notify the lawyer for the party who mailed the letter.

The opinion concluded the receiving lawyer had no obligation to notify the opponent. No Alaska Rule directly controlled the situation. Rule 4.2 (no contact with a represented person) did not apply, because the receiving lawyer was not communicating with the other lawyer's client at all; he merely received an unsolicited, unanticipated mailing. The opinion distinguished the case of a misdirected confidential communication, where ABA Formal Opinion 92-368 advised returning the material unopened, and the case of unsolicited receipt of an adverse party's privileged materials from a third party, where ABA Formal Opinion 94-382 advised notifying the adversary before reviewing the materials; it noted that several state committees (Maryland, Virginia, Michigan) had disagreed with the ABA's notification approach.

The Committee reasoned that those authorities assumed an unauthorized disclosure by a third party, whereas here the disclosure was made intentionally by the very person for whose benefit the confidentiality rules exist, the client, who had unquestionable authority to make it. The opinion found no overarching ethical principle in the Alaska rules requiring the receiving lawyer to disclose receipt in that situation, particularly where disclosure might not serve his own client's interests. It added that informing the sending party's counsel may be good practice as a matter of professional courtesy, to increase candor and forestall allegations of wrongdoing, but declined to create such a duty absent a specific rule. The opinion did not address any disclosure obligations under the rules of civil procedure or other rules of court.

Currency note

This opinion was issued in 1997, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the lawyer have to tell opposing counsel he received the confidential letter?

A: The opinion concluded he had no ethical obligation to notify the opponent, because the opposing party's own client intentionally sent the material.

Q: Why didn't the inadvertent-disclosure rule apply?

A: Per the opinion, the ABA's notification guidance assumed an unauthorized disclosure by a third party or a misdirected communication; here the client, who held the authority to waive confidentiality, sent it intentionally.

Q: Did Rule 4.2 require any action?

A: The opinion explained Rule 4.2 did not apply because the receiving lawyer was not communicating with the other lawyer's client; he merely received an unsolicited mailing.

Q: Should the lawyer notify opposing counsel anyway?

A: The opinion observed that doing so may be good practice as a matter of professional courtesy, but it declined to impose a duty absent a specific rule.

Background and rules framework

The opinion interpreted Alaska Rules of Professional Conduct 1.6 (confidentiality of information; Model Rule 1.6) and 4.2 (communication with represented persons; Model Rule 4.2). It discussed ABA Formal Opinions 92-368 (inadvertent disclosure) and 94-382 (unsolicited receipt of privileged materials), and contrary state opinions from Maryland (89-53), Virginia (1076), and Michigan (CI-1970-1983). It expressly left open any obligations under the rules of civil procedure or court.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6 (confidentiality of information)
• Alaska RPC 4.2 (communication with represented persons)

Other opinions cited:

• ABA Formal Opinions 92-368, 94-382
• Maryland Op. 89-53; Virginia Op. 1076; Michigan CI-1970-1983

See also

• ABA Formal Op. 06-440: Unsolicited Privileged Materials
• ABA Formal Op. 05-437: Inadvertently Sent Documents

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/97-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 97-1
Notification of Opponent of Receipt
of Confidential Materials
The Committee has been presented with a hypothetical situation in
which a party in a divorce case intentionally mailed a copy of a confidential
letter form her lawyer concerning the litigation to her adverse party’s lawyer,
and this was done without her lawyer’s knowledge. Neither the adverse party,
nor the adverse party’s lawyer solicited the information. However, the
receiving lawyer’s client asked that his lawyer not disclose the receipt of the
material because it might adversely affect his relationship with his estranged
wife. The Committee was asked to opine whether the lawyer who received the
letter must, over the objection of his client, notify the lawyer representing the
party who mailed the letter.
The Committee believes that the receiving lawyer has no obligation to
notify her opponent.1 There is no Alaska Rule of Professional Conduct that
directly controls this situation. ARPC 4.2 prohibits a lawyer from
communicating about the subject of the representation with the person the
lawyer knows to be represented by another lawyer in the matter. However, in
the hypothetical before us, it cannot be said that the lawyer receiving the letter
from the other party is communicating at all with the other lawyer’s client; he
merely received a mailing containing a copy of a confidential communication,
which he neither invited nor anticipated.
Nor is this a situation in which a lawyer was mistakenly sent a
confidential communication, such as by a misdirected facsimile transmission.
In that situation, the ABA Standing Committee on Ethics and Professional
Responsibility opined that a lawyer receiving inadvertent disclosure of
confidential communication should return the communication unopened and
unexamined to the opposing lawyer. ABA formal Opinion 92-368, Inadvertent
Disclosure of Confidential Materials (November 10, 1991). In so concluding,
the ABA Standing Committee relied, in large part, upon the critical importance
of maintaining confidentiality in the attorney-client relationship. However, in
the hypothetical before this Committee, disclosure was not inadvertent at all,
but was intentionally made by the client, who is, after all, the beneficiary of the
1This opinion does not address whether there are obligations under the Alaska Rules of Civil

Procedure or other rules of court that require disclosure.

-1-

rules of protecting attorney-client confidentiality. This Committee finds no
other overarching ethical principal embodied in the ARPC that would require
notification of opposing counsel by the receiving attorney in this situation.
The situation presented to this Committee is more closely analogous to
that of a lawyer who receives, on an unauthorized basis, materials of an
adverse party that she knows to be privileged or confidential. In such a
situation, the ABA Standing Committee on Ethics and Professional
Responsibility, has opined that the receiving lawyer must, before reviewing the
materials, notify her adversary’s lawyer that she has the 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 on the proper disposition of the materials is obtained from
a court. ABA Formal Opinion 94-382, Unsolicited Receipt of Privileged or
Confidential Materials (July 5, 1994). State Bar Ethics Committees have
disagreed with that result. See, Maryland Bar Association, Opinion 89-53
(1989) (receiving lawyer has no obligation to reveal the matter to the Court or
opposing party; a lawyers’ only obligation is to preserve originals from
destruction); Virginia Bar Association Opinion 1076 (1988) (materials may be
used although opposing counsel should be notified of their receipt as a matter
of “professional courtesy”); Michigan Bar Association CI-1970-1983
(confidential document of the opposing party may be used at trial providing
neither the attorney nor his client procured removal of the document from the
possession of the opposing party).
ABA Formal Opinion 94-382, and the above-cited state ethics opinions,
assumed that the disclosure was made by a third party, who was not
authorized to do so. Here, however, the disclosure was made intentionally by
the person who had unquestionable authority to do so, and on whose behalf
confidentiality rules were promulgated: the client. Accordingly, the Committee
does not believe an ethical obligation to disclose receipt of the material should
be imposed on the receiving lawyer when the situation was created by the
intentional, unsolicited acts of the opposing party, particularly when the
disclosure may not be in the best interests of the lawyer’s client.2

Approved by the Alaska Bar Association Ethics Committee on November 7, 1996.

2 Ordinarily, it may be a good practice, as a matter of “professional courtesy,” to inform the

sending party’s counsel of the receipt of the material. This will increase candor and trust
between counsel and forestall allegations of wrongdoing. However, absent specific provisions
in the ARPC imposing such a duty, the committee declines to create one here.

-2-

Adopted by the Board of Governors on January 17, 1997.

-3-