If a lawyer receives documents a third party took without authorization from the opposing party, must the lawyer notify the opponent or return them?

Plain-English summary

A lawyer in an adversary proceeding receives documents or electronically stored information from a third party that may have been stolen or otherwise taken without authorization from the opposing party. The opinion assumes the lawyer did not advise the client to obtain the documents or participate in obtaining them. It asks whether the lawyer must notify the opposing party of receiving the documents (no, qualified) and whether the lawyer must return them (no, qualified).

The opinion applies Oregon RPC 4.4(b), which requires a lawyer who receives a document or electronically stored information and knows or should know it was inadvertently sent to promptly notify the sender. By its terms, the rule applies only when the transmission is inadvertent; where the delivery is not the result of the sender's inadvertence, Oregon RPC 4.4(b) does not apply, and it does not require the lawyer to take or refrain from any particular action with documents sent purposely but without authority. The opinion concludes other rules limit the lawyer's options, however.

First, if the documents were obtained through criminal conduct, Oregon RPC 1.6 may bar the lawyer from disclosing receipt of them, because disclosure could harm the lawyer's client, and this holds even when the documents came from a source other than the lawyer's own client. The opinion notes, citing OSB Formal Ethics Opinion 2005-105, that Oregon RPC 8.4(a)(4) can prevent a lawyer from accepting evidence of a crime unless the lawyer makes it available to the prosecution, and that receiving stolen documents may expose the lawyer to criminal or civil liability for evidence tampering. Second, the documents may be protected under the substantive law of privilege; while the scope of those protections is not a question of professional responsibility, a lawyer who reviews, retains, or attempts to use privileged documents may be subject to disqualification or other sanctions under court rules or substantive law.

In practice

This opinion (revised 2015) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that the notify-the-sender duty in Oregon RPC 4.4(b) is limited to inadvertent transmissions and does not reach documents a third party sent purposely without authority, so that rule imposes no notice-or-return obligation. Per the opinion, the lawyer's conduct is still bounded by other law: confidentiality under Oregon RPC 1.6 may bar disclosing receipt where a crime is involved, Oregon RPC 8.4(a)(4) and the criminal law may govern evidence of a crime, and reviewing or using privileged material risks disqualification or sanctions under substantive law and court rules.

Common questions

Q: Must a lawyer notify the opponent after receiving documents a third party took without authorization?

A: No, not under Oregon RPC 4.4(b). The opinion concludes that rule's notify-the-sender duty applies only to inadvertently sent material, not to documents sent purposely but without authority.

Q: Must the lawyer return the documents?

A: No, qualified. The opinion concludes Oregon RPC 4.4(b) does not require returning documents sent purposely without authority, though other rules and substantive law may constrain the lawyer's handling of them.

Q: Can the lawyer freely disclose that the documents were received?

A: Not necessarily. The opinion concludes that if the documents were obtained through criminal conduct, Oregon RPC 1.6 may bar disclosing receipt because it could harm the lawyer's client, and Oregon RPC 8.4(a)(4) may require making evidence of a crime available to the prosecution.

Q: Is it safe to review and use the documents?

A: Not necessarily. The opinion concludes the documents may be privileged under substantive law, and a lawyer who reviews, retains, or uses privileged documents may face disqualification or other sanctions.

Background and rules framework

The opinion interprets Oregon RPC 4.4(b) (receipt of inadvertently sent documents), Oregon RPC 1.6 (confidentiality), Oregon RPC 8.4(a)(4) (conduct prejudicial to the administration of justice), and Oregon RPC 1.2(c) (not assisting illegal or fraudulent conduct), corresponding to Model Rules 4.4, 1.6, 8.4, and 1.2. It relies on ABA Formal Opinion 06-440 and prior OSB opinions on confidentiality and stolen materials.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.4(b) / Model Rule 4.4 (receipt of inadvertently sent documents)
• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)
• Oregon RPC 8.4(a)(4) / Model Rule 8.4 (conduct prejudicial to the administration of justice)
• Oregon RPC 1.2(c) / Model Rule 1.2 (not assisting illegal or fraudulent conduct)

Cases:

• Richards v. Jain, 168 F Supp 2d 1195 (WD Wash 2001), disqualification for using privileged materials
• Burt Hill, Inc. v. Hassan, 2010 WL 419433 (WD Pa 2010)

Other opinions cited:

• ABA Formal Ethics Op. No. 06-440 (unsolicited receipt of privileged materials)
• OSB Formal Ethics Op. No. 2005-105 (receipt of evidence of a crime); OSB Formal Ethics Op. No. 2005-150 (rev 2015) (inadvertently sent documents)

See also

• ABA Formal Op. 06-440: Unsolicited Receipt of Privileged Materials
• OSB Ethics Op. 2005-150: Inadvertent Disclosure of Privileged Information
• OSB Ethics Op. 2005-105: Receipt of Stolen Property and Fruits of a Crime

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2011-186.pdf