What must an Ohio lawyer do after a public records search turns up a memo that appears to be attorney-client privileged?

Plain-English summary

The Board addressed the narrow question of a lawyer's ethical duty after a pre-litigation public records search produced a copy of an inadvertently disclosed memorandum that appeared to contain attorney-client privileged information. The Board first noted that whether the inadvertent disclosure waived the privilege or work-product protection is a question for judicial determination, outside the Board's authority.

The Board observed that obtaining information through a public records search is not improper, citing EC 7-15, and that privileged communications between attorneys and government clients are ordinarily exempt from disclosure under Ohio's Public Records Law, R.C. 149.43(A)(1). Where such a memorandum is nonetheless obtained innocently, the Board concluded there is no ethical duty to refrain from reading it or from revealing its contents to the client, because the lawyer's duty runs to the lawyer's own client. The Board concluded, however, that the lawyer has an ethical duty to notify the source of the disclosure and to return a copy of the memorandum upon request.

Currency note

The Ohio Board reports that this opinion was withdrawn by Opinion 2024-05 issued October 4, 2024. Because it has been withdrawn, it is indexed here as research only and is not current guidance.

This opinion issued in 1993, before Ohio's adoption of the Ohio Rules of Professional Conduct, which superseded the former Code of Professional Responsibility effective February 1, 2007. The treatment of inadvertently disclosed materials has since developed under the current rules and later opinions. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific duty mentioned here.

Common questions

Q: Could the lawyer read the inadvertently disclosed memo and tell the client?

A: Under the opinion, yes. The Board concluded there was no ethical duty to refrain from reading the memorandum or from revealing its contents to the lawyer's own client, where the lawyer obtained it innocently through a public records search.

Q: Did the lawyer owe any duty to the other side?

A: Yes. The Board concluded the lawyer had an ethical duty to notify the source of the inadvertent disclosure and to return a copy of the memorandum on request.

Q: Did the opinion decide whether the privilege was waived?

A: No. The Board stated that whether inadvertent disclosure waives the attorney-client privilege or work-product protection is a question for judicial determination, beyond the Board's authority.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility EC 7-15 (obtaining public information without identifying the client) and DR 4-101 (confidences and secrets), against Ohio's Public Records Law, R.C. 149.43(A)(1), which exempts records whose release is prohibited by state or federal law, including privileged attorney-government-client communications.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility EC 7-15, DR 4-101

Statutes:

• Ohio Rev. Code Ann. Section 149.43(A)(1) (Baldwin Supp. 1992)

Cases:

• Ranney-Brown Distributors v. E.T. Barwick Industries, 75 F.R.D. 3 (S.D. Ohio 1977)
• Woodman v. Lakewood, 44 Ohio App. 3d 118 (Ct. App. Cuyahoga County 1988); State ex rel. National Broadcasting Co. v. City of Cleveland, 82 Ohio App. 3d 202 (Ct. App. Cuyahoga County 1992)

See also

• Ohio BPC Op. 1990-001: Duty to Report Lawyer Misconduct and Privilege
• Ohio BPC Op. 1990-007: Client Fabricated Records, Confidentiality and Candor
• Ohio BPC Op. 1991-015: Confidences of a Prospective Client and Impeachment Testimony

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-93-011.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 93-11
Issued December 3, 1993
Withdrawn by Adv. Op. 2024-05
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: When a lawyer conducts a public records search prior to litigation and through no
wrong doing obtains a copy of an inadvertently disclosed memorandum that either on its face or
upon closer examination appears to contain information subject to the attorney-client privilege,
there is no ethical duty to refrain from reading the memorandum or to refrain from revealing the
contents to the client; however, the attorney does have an ethical duty to notify the source and to
return a copy of the memorandum upon request.

OPINION: This opinion addresses an attorney's ethical duty upon receiving an inadvertently
disclosed memorandum containing confidential and or privileged communication. This opinion
focuses narrowly on the question presented below.

When a lawyer conducts a public records search prior to litigation and through no
wrong doing obtains a copy of an inadvertently disclosed memorandum that either
on its face or upon closer examination appears to contain information subject to the
attorney-client privilege, is there an ethical duty to refrain from reading the
memorandum, to notify the source, to return the memorandum upon request, and to
refrain from revealing the contents to the client?

The Board begins by noting that it is beyond the Board's authority to advise upon whether
inadvertent disclosure of materials to a potential litigation adversary waives attorney-client
privilege and work-product doctrine with respect to those materials. That is an issue for judicial
determination. See e.g., Ranney-Brown Distributors v. E. T.Barwick Industries, 75 F.R.D. 3 (S.D.
Ohio 1977).

Clearly, there is no impropriety in an attorney obtaining information from a public records search.
Ethical Consideration 7-15 states "it is not improper . . . for a lawyer to seek from an agency
information available to the public without identifying his [her] client."

Ordinarily, communication subject to the attorney-client privilege would not be obtained through
conducting a public records search. Under Ohio Public Records Law, Title 1, section 149.43 (A)
(1) of the Ohio Revised Code (Baldwin Supp.1992), privileged communications between attorneys
and government clients are exempt from disclosure under the statutory exception of "records the
release of which is prohibited by state and federal law." See Woodman v. Lakewood, 44 Ohio
App. 3d 118, 120, 123 (Ct. App. Cuyahoga County 1988). See also, State ex rel. National
Broadcasting Co. v. City of Cleveland, 82 Ohio App. 3d 202, 207 (Ct. App. Cuyahoga County
1992); Allright Parking of Cleveland v. City of Cleveland, No. 57881, unreported, 1991 WL 30252
(Ct. App. Cuyahoga County, Mar. 1, 1991).

Thus, when privileged communication is inadvertently disclosed through public records, the
attorney who obtains the material must consider what duties, if any, exist. An initial consideration
is whether there is any duty to preserve confidences and secrets with regard to the inadvertently
obtained materials. This Board's view is that within the Code, there is no express or implied duty to
protect an opposing party's confidences and secrets. Rather, the lawyer's duty under Disciplinary
Rule 4-101 is to protect the confidences and secrets of his or her client.

Nevertheless, there is a duty under DR 1-102 (A) (4) not to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation. Further, there is a responsibility under DR 7-101
(A) (1) to act courteously toward opposing counsel. As stated within DR 7-101 (A) (1), a lawyer's
duty to seek the lawful objectives of a client is not violated by "acceding to reasonable requests of
opposing counsel which do not prejudice the rights of his [her] client, by being punctual in
fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy
and consideration all persons involved in the legal process." Ethical Consideration 7-38 echoes the
call for courteous behavior.

Inadvertent disclosure has been addressed by ethics committees outside Ohio, but not in the context
of a public records search. As to the issue of inadvertent disclosure to a lawyer through a client's or
witness's interception of privileged materials, several states have declined to advise. See Maryland
State Bar Ass'n Op. 85-15 (1984) (A lawyer's use of a memorandum that the client obtained and
that was written by the adverse party to her lawyer is a legal issue); State Bar of Arizona, Op. 83-14
(1983) (A law firm's use at trial of an adversary's documents obtained by a witness is controlled by
court orders delineating the issues of discovery and evidence). A Philadelphia ethics committee
has advised that a lawyer who received from a client a copy of a letter from an

opposing counsel to opposing counsel's client would be prohibited from disclosing it to opposing
counsel without consent of client; in addition, the committee expressed concern regarding
destruction of the letter. Philadelphia Bar Ass'n, Op. 91-19 (undated).

One state ethics committee has addressed the issue of inadvertent disclosure to a lawyer from an
unidentified source. See Maryland State Bar Ass'n, Op. 89-53 (1989). The Maryland ethics
committee advised that when a lawyer receives copies of documents belonging to an opposing
party from an unidentified source, there is no need to reveal it to the court or to the opposing party,
but the attorney should keep copies to avoid destruction of evidence, and if original documents are
received the lawyer must attempt to return them to the rightful owner. Id.

Recently, the ABA addressed inadvertent disclosure in the context of a lawyer sending privileged
information to an opposing counsel. See ABA, Formal Op. 92-368 (1992). The ABA committee
advised that "[a] lawyer who receives materials that on their face appear to be subject to the
attorney-client privilege or otherwise confidential, under circumstances where it is clear they were
not intended for the receiving lawyer, should refrain from examining the materials, notify the
sending lawyer and abide the instructions of the lawyer who sent them.") Id. This Board is not
persuaded by ABA Formal Opinion 92-368 (1992) which interprets the Model Rules and does not
address the issue of inadvertent disclosure in the context of a public records search.

Although not controlling in this jurisdiction, the Tenth Circuit recently ruled that a lawyer who was
inadvertently faxed an internal federal-agency memorandum need not return the memo to the
agency as there was waiver of the work-product privilege once the memo was transmitted. NLRB
v Monfort Inc., Nos. 90-9518, etc., (10th Cir. Sept. 10, 1993). In Monfort, the magistrate stated
"[y]ou cannot seal the bag from which the cat has already escaped." Id.

As to the present inquiry, this Board finds little comfort in admonishing lawyers to refrain from
examining materials received from another lawyer or from any other source since in most instances
it is only upon examination that a lawyer could determine that the materials contain privileged
information. Further, the Board finds no violation of the DR 4-101 rule of confidentiality resulting
from reading information obtained through a public records search. Nevertheless, upon receipt of a
memorandum that either on its face or upon closer examination appears to contain information
subject to the attorney-client privilege, the Board's view is that notification of the opposing counsel
is required, for to do otherwise is dishonest and misleading and would violate DR 1-102(A) (4).

As to whether an attorney should return a memorandum inadvertently disclosed through public
records, the Board's view is that the attorney may keep the copy of the memorandum, but, out of
courtesy and fairness under DR 7-101 (A) (1) the attorney should also provide opposing counsel
with a copy if requested. Once confidential material has been examined even briefly, the
information cannot be purged from the mind of the attorney who inadvertently receives it. Thus,
unless required by court order, the Board sees no merit in returning inadvertently disclosed material
under the facts presented. Rather than pretending that the return of inadvertently disclosed material
would purge the material from the mind of the receiving lawyer, it is better for both sides to
acknowledge that the information was disclosed. Finally, under the facts presented, the Board finds
no persuasive reason within the Code to suggest that such information inadvertently disclosed
through public records should be withheld from a lawyer's client.

In conclusion, this Board advises that when a lawyer conducts a public records search prior to
litigation and through no wrongdoing obtains a copy of an inadvertently disclosed memorandum
that either on its face or upon closer examination appears to contain information subject to the
attorney-client privilege, there is no ethical duty to refrain from reading the memorandum or to
refrain from revealing the contents to the client; however, the attorney does have an ethical duty to
notify the source and to return a copy of the memorandum upon request.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath of Office.