What must a North Carolina lawyer do after receiving an opposing party's privileged or confidential materials sent by mistake?

Plain-English summary

An insurance adjuster erroneously sent the company's entire claim file to the plaintiff's lawyer (Attorney C) before responsive pleadings were filed. The cover letter was addressed to Attorney C but its salutation read "Dear Attorney X" (defense counsel), and an enclosed copy of a letter to the defendant wrongly said Attorney C would defend him. The file included the plaintiff's medical records, the demand letter, and a "claim diary" that Attorney C read and believed showed a prima facie unfair and deceptive trade practice. Attorney C sent copies to the adjuster and to defense counsel, who demanded return of the original.

The opinion concluded Attorney C must return the original file. The lawyer has a duty of honesty and a duty of courtesy to all persons involved in the legal process (Rule 1.2(c); Rule 7.1(a)), and the file belonged to neither Attorney C nor his client; from the cover letter it could be readily ascertained that the materials were privileged or otherwise confidential and were sent inadvertently. Upon realizing the materials were not intended for his eyes, Attorney C should have refrained from reviewing them, notified opposing counsel of their receipt, and followed opposing counsel's instructions on disposition, and he may not use the substance of the inadvertently sent materials to his client's advantage.

The opinion further concluded it was not acceptable for Attorney C to read the cover letter and examine the file after the salutation revealed the materials were misdirected. A recipient of an inadvertent disclosure must stop reading as soon as he realizes the materials may be subject to another's attorney-client privilege, or are otherwise confidential attorney communications not intended for him; this follows from the duties of honesty and courtesy (Rule 1.2(c); Rule 7.1(a)(1)) and respects the opposing party's confidentiality (Rule 4). The opinion concluded the answer is the same whether the materials were sent by the opposing party's representative or by opposing counsel.

Currency note

The State Bar notes that, to the extent this opinion is contrary to Rule 4.4 (Respect for Rights of Third Persons), paragraph (b) and comments [2] and [3], as revised in 2003 and thereafter, the rule and comment are controlling. This opinion was issued in 1997, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the duties under the prior numbering (Rule 1.2(c), Rule 7.1(a), and "Rule 4"). Under current Rule 4.4(b), a lawyer who receives a document and knows or reasonably should know it was inadvertently sent must promptly notify the sender; treat this page as historical context, not current guidance, and verify against the current rule before relying on the specific steps described here.

Common questions

Q: What must a North Carolina lawyer do after getting privileged materials sent by mistake?

A: The opinion concluded the lawyer must stop reading once he realizes the materials may be privileged or confidential and not meant for him, notify opposing counsel, follow their instructions, and return the originals (Rule 1.2(c); Rule 7.1(a)). Current Rule 4.4(b) requires prompt notice to the sender.

Q: Can the receiving lawyer use the contents to his client's advantage?

A: No. The opinion concluded the lawyer may not use the substance of the inadvertently sent materials to his client's advantage.

Q: Does it matter if the materials came from opposing counsel rather than the party?

A: No. The opinion concluded the obligation is the same whether the inadvertent disclosure was made by the opposing party's representative or by opposing counsel.

Q: Is RPC 252 still controlling?

A: Only in part. The State Bar notes that revised Rule 4.4(b) and comments [2] and [3] (2003 and later) control to the extent this opinion is contrary.

Background and rules framework

The opinion applied the duties as numbered in 1997, North Carolina Rule 1.2(c) (avoiding offensive tactics; courtesy to persons in the legal process) and Rule 7.1(a) (honesty), together with the confidentiality protections of Rule 4, to a lawyer's receipt of inadvertently disclosed materials. The State Bar reports the analysis is now governed, to the extent contrary, by the inadvertent-disclosure provision in revised Rule 4.4(b) (the analogue to Model Rule 4.4(b)) and its comments [2] and [3].

Citations and references

Rules of Professional Conduct:

• MR 4.4(b) (respect for rights of third persons; inadvertently sent documents) / NC Rule 4.4(b) (controlling, as revised in 2003)
• Original opinion cites (1997 numbering): NC Rule 1.2(c), Rule 7.1(a), Rule 4

See also

• NC State Bar Op. 2009 FEO 1: Ethical Responsibilities of Lawyers Sending and Receiving Metadata

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-252/

Original opinion text

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

Editor's Note: To the extent that this opinion is contrary to Rule 4.4, Respect for Rights of Third Persons, paragraph (b) and comments [2] and [3], as revised in 2003 and thereafter, the rule and comment are controlling.

Inquiry #1:

Insurance Company is the liability carrier for Defendant Motorist. Plaintiff is represented by Attorney C. After settlement discussions failed, Attorney C filed suit on behalf of Plaintiff. Insurance Company hired Attorney X to defend the suit. Before responsive pleadings were filed, adjuster for Insurance Company erroneously sent the company's claim file to Attorney C. The claim file was sent by certified mail, return receipt requested, addressed to Attorney C. The cover letter was also addressed to Attorney C. However, the letter's salutation read "Dear Attorney X." A copy of the letter to the defendant from the adjuster was also enclosed with the file. This letter incorrectly informed the defendant that he would be defended by Attorney C. In addition to a photo of Plaintiff's vehicle, Plaintiff's medical records, and Attorney C's demand letter, the file included a "claim diary" that Attorney C read and believes contains prima facie evidence of an unfair and deceptive trade practice by Insurance Company.

Attorney C sent a copy of the file to the adjuster and to Attorney X. Attorney X demands the return of the original file. Is Attorney C required to return the original file to Insurance Company?

Opinion #1:

Yes. Attorney C has a duty of honesty and a duty of courtesy to all persons involved in the legal process. See Rule 1.2(c) and Rule 7.1(a). The original file does not belong to Attorney C or to his client. From the cover letter, it could be readily ascertained that the accompanying materials were subject to the attorney-client privilege or otherwise confidential and were sent to Attorney C inadvertently. Upon realizing that the materials were not intended for his eyes, Attorney C should have (1) refrained from reviewing the file materials, (2) notified the opposing counsel of their receipt, and (3) followed opposing counsel's instructions as to the disposition of such materials. Under these circumstances, the receiving attorney may not use the substance of the materials inadvertently sent to him to the advantage of his client.

Inquiry #2:

Was it acceptable for Attorney C to read the cover letter and examine the claim file although Attorney C realized from the salutation on the cover letter that the letter and the attached materials were sent to him erroneously?

Opinion #2:

No. A lawyer who is the recipient of an inadvertent disclosure of written materials by an opposing party or opposing counsel is required to discontinue reading the materials as soon as the lawyer realizes that the materials may be subject to the attorney-client privilege of others, or are otherwise confidential communications involving an attorney, and the materials were not intended for his or her eyes. This requirement is consistent with a lawyer's duty of honesty as well as a lawyer's duty to avoid offensive tactics and treat with courtesy and consideration all persons involved in the legal process. Rule 1.2(c) and Rule 7.1(a)(1). It also respects the opposing party's confidentiality. See Rule 4.

Inquiry #3:

Would the response to inquiry #2 be different if the inadvertently disclosed materials were sent by opposing counsel instead of a representative of the opposing party?

Opinion #3:

No.