What must a Utah lawyer do after lawfully obtaining an opposing party's privileged communication?

Plain-English summary

Opinion 99-01 addressed a lawyer's ethical obligations when the lawyer or the lawyer's client has lawfully obtained an attorney-client communication between an opposing party and opposing counsel, under circumstances where the opposing party may not have intended to waive the privilege. The Committee concluded that the lawyer is required to bring the receipt of such a communication to opposing counsel's attention unless it is clear from the circumstances that the attorney-client privilege has been intentionally waived.

The Committee found nothing in the Rules of Professional Conduct that directly addresses the privilege as it applies to an opposing party, but it read Rule 8.4(d), which makes conduct prejudicial to the administration of justice professional misconduct, to require a lawyer to take steps to preserve the privilege and the orderly administration of justice. It drew on two ABA opinions for guidance while not necessarily adopting all of their conclusions: Formal Opinion 92-368 (inadvertent disclosure of confidential materials) and Formal Opinion 94-382 (a third party providing an attorney-client communication to a lawyer).

The opinion acknowledged that the underlying question of whether a privilege was actually waived is a fact-driven legal question left to the courts, and it surveyed conflicting case law (collected in an appendix) on disclosures such as documents recovered from the trash. Its ethical rule deliberately separates the factual or legal question of waiver from the lawyer's ethical duty: by advising opposing counsel of the disclosure regardless of the surrounding facts, the receiving lawyer avoids self-interested judgments, guards against subconscious bias, and lets the parties or a court resolve the legal question of waiver.

Currency note

This opinion was issued in 1999, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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: Does a Utah lawyer have to tell opposing counsel about receiving the other side's privileged document?

A: Yes, generally. The opinion concluded the lawyer must advise opposing counsel of the disclosure unless it is clear from the circumstances that the privilege was intentionally waived.

Q: Which rule did the Committee rely on?

A: It relied on Rule 8.4(d), reasoning that conduct preserving the attorney-client privilege and the orderly administration of justice is required because failing to disclose would be inconsistent with that standard.

Q: Does the lawyer have to decide whether the privilege was actually waived?

A: No. The opinion treated waiver as a fact-driven legal question for the parties or a court, and said the ethical duty to notify exists regardless, so the receiving lawyer is not making the waiver determination alone.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 8.4(d), which provides that it is professional misconduct to engage in conduct prejudicial to the administration of justice. The Committee noted that the Rules' "Scope" leaves the judicial application of the attorney-client privilege to the courts, so it framed the lawyer's duty as an ethical obligation to preserve the privilege rather than a ruling on waiver. Rule 8.4(d) corresponds to ABA Model Rule 8.4(d).

Citations and references

Rules of Professional Conduct:

• MR 8.4 / Utah RPC 8.4(d) (conduct prejudicial to the administration of justice)

Other opinions cited:

• ABA Formal Op. 92-368 (1992): inadvertent disclosure of confidential materials
• ABA Formal Op. 94-382 (1994): receipt of an adverse party's materials from a third party

See also

• ABA Formal Op. 06-440: Unsolicited Privileged Materials
• AK Bar Ethics Op. 97-1: Confidential Materials From Opponent
• Alaska Ethics Op. 79-2: Going Through Trash

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1999-01.pdf

Original opinion text

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

Utah Ethics Opinions administration of justice. (fn2)
1999. The introductory "Scope" of the Rules of Professional
Conduct notes that the rules are not intended to exhaust the
99-01. USB EAOC Opinion No. 99-01 moral and ethical considerations that should govern a
lawyer, but are designed to provide a framework for the
UTAH STATE BAR
ethical practice of law. This section also notes that the rules
are not intended to govern or affect the judicial application
Ethics Advisory Opinion Committee
of the attorney-client privilege, but that the client is entitled
to expect communications within the scope of the privilege
Opinion No. 99-01
will generally be protected.
Approved January 29, 1999
While not addressing the broad question presented above,
Question: What are an attorney's ethical obligations when the American Bar Association Standing Committee on
the attorney or his client has lawfully obtained an Ethics and Professional Responsibility has issued two
attorney-client communication between an opposing party opinions on narrower issues directed to disclosure of
and opposing counsel under conditions where the opposing attorney-client communications. Although the Committee
party may not have intended to waive the attorney-client does not necessarily subscribe to all of the conclusions of
privilege? those two opinions, they do provide useful discussions
relevant to the ethical issues currently before us.
Opinion: A lawyer is required to bring to the attention of
opposing counsel the receipt of any such communication ABA Formal Opinion 92-368, entitled "Inadvertent
unless it is clear from the circumstances that the Disclosure of Confidential Materials," addressed the
attorney-client privilege has been intentionally waived. situation where counsel inadvertently faxed or mailed
privileged documents to opposing counsel. The opinion
Analysis: This general issue came to the Committee in determined that this circumstance should not result in
connection with a specific set of facts that involved an waiver of privilege. It concluded that "A lawyer who
attorney's client who—independent of the receives materials that on their face appear to be subject to
attorney—had obtained a potentially material the attorney-client privilege or otherwise confidential, under
attorney-client document that was not the subject of a circumstances where it is clear they were not intended for
conscious waiver of the attorney-client privilege by the the receiving lawyer, should refrain from examining the
other party. Because a variety of fact patterns of this type materials, notify the sending lawyer and abide the
may arise, we will consider the general question of an instructions of the lawyer who sent them." Under these
attorney's ethical obligations when he lawfully (fn1) obtains narrow fact circumstances, the ABA concluded that a
an attorney-client communication between opposing receiving attorney has an ethical duty to return the
counsel and her client. attorney-client communications to opposing counsel
without making any use of them.
In some instances it may be clear that the opposing party
waived the privilege. An opposing party's use of an ABA Formal Opinion 94-382 addressed the somewhat
attorney-client communication for which the privilege has different situation where a third party provided an
been waived raises no ethical issues. attorney-client communication to a lawyer, without being
solicited to do so. In other words, unlike opposing counsel
In other circumstances, however, it may be unclear whether in Opinion 92-368 who made an inadvertent disclosure, the
the privilege was waived, and circumstances may even third party intended to send the materials to the receiving
establish that the privilege was not waived. This raises the attorney. The ABA opinion declined to state an absolute
ethical question regarding what the receiving attorney may rule regarding use of the materials, as some circumstances
or may not do with the communication. might call for waiver and others might not. The opinion
concluded that the best course of action was for the
We find nothing in the Rules of Professional Conduct that receiving attorney to advise opposing counsel of the
directly addresses the attorney-client privilege as it applies disclosure, and then either return the documents or seek
to an opposing party, but we believe that Rule 8.4(d) places assistance from the court in determining the appropriate
an obligation upon every lawyer to take steps to preserve course of action under the particular facts at hand:
the attorney-client privilege in order to effect the orderly
A lawyer who receives on an unauthorized basis materials

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of an adverse party that she knows to be privileged or opposing counsel.
confidential should, upon recognizing the privileged or
confidential nature of the materials, either refrain from Once the fact of disclosure is before both parties, they can
reviewing such materials or review them only to the extent then turn to the legal implications of the disclosure and a
required to determine how appropriately to proceed; she legal assessment of whether waiver has occurred. In some
should notify her adversary's lawyer that she has such instances the parties may be able to agree regarding how to
materials and should either follow instructions of the handle the disclosure. In other instances, it may be
adversary's lawyer with respect to the disposition of the necessary to seek judicial resolution of the legal issues.
materials, or refrain from using the materials until a
APPENDIX A
definitive resolution of the proper disposition of the
materials is obtained from a court.
Courts have routinely held in criminal matters that there is
not a reasonable expectation of privacy protected by the
As noted above, matters relating to the attorney-client
Fourth Amendment in garbage placed outside their homes
privilege have been left to the courts to decide. Yet, the
for collection. California v. Greenwood; (fn5) U.S. v. Scott.
discussion contained in each of the two ABA formal
(fn6) Hence, such evidence can be used to find a defendant
opinions discussed above illustrates a potential void
guilty of a crime.
regarding what constitutes ethical behavior under some
circumstances. Further, we find little guidance in the
The issue seems less settled when applied to
judicial decisions in this area. There appears no clear rule of
communications between an attorney and a client. For
law in the cases, and the decisions have often turned upon
example, in Suburban Sew 'n Sweep, Inc. v. Swiss-Bernina,
the specific facts of a particular situation. (fn3)
Inc., (fn7) defendant's president sent several confidential
letters to counsel. The handwritten drafts were placed into a
After reviewing the ABA opinions and the case law, the
wastebasket and subsequently collected in a trash dumpster
Committee finds that there is a substantial tension between
used only by defendant. The documents were collected
the competing policies surrounding the concepts of
from the trash dumpster by plaintiff. It was uncontroverted
privilege and waiver that is magnified by the desire to
that defendant expected these communications to remain
establish high ethical standards. Although it is troubling to
confidential. In an opinion containing a substantial
attempt to establish ethical guidelines that are subject to the
discussion of the issues, including a discussion of the
degree of uncertainty inherent in this area of law, the
Fourth Amendment, the policies behind the attorney-client
Committee has a responsibility to provide guidance to
privilege and inadvertent-disclosure cases, the court stated
lawyers as they attempt to satisfy their ethical obligations.
that privilege is not automatically waived when
It is also difficult for the Committee to provide ethical confidentiality is breached. Rather, the relevant
guidelines that may turn on such particular facts as whether consideration was the intent of the defendant to maintain
someone throws away a document after balling it up, or first confidentiality as manifested in the precautions taken. The
tears it up into a few pieces before placing it into the trash. court identified two considerations: (1) the effect on
Yet, attorneys need guidance regarding their ethical uninhibited consultation between attorney and client of not
obligations in these situations. allowing the privilege in these circumstances; and (2) the
ability of the parties to the communication to protect against
Having so considered this issue, the Committee's view is the disclosure. The court determined that the defendant
that an attorney in possession of an opposing party's could have shredded the documents in this case, and the
attorney-client communications for which the privilege was waived.
attorney-client privilege has not been intentionally waived
should advise opposing counsel of the fact of its disclosure, A contrary result was obtained in Mendenhall v.
regardless of the specific facts surrounding disclosure. We Barber-Greene Co. (fn8) One basis of the decision in this
draw this conclusion primarily because to do otherwise case was the observation that proposed Rule 503(a)(4) of
would be inconsistent with the standards of Rule 8.4(d) the Federal Rules of Evidence provided that a
(fn4) This approach has the virtue of separating the factual communication is "confidential" if not intended to be
determination regarding the legal merits regarding waiver disclosed to third persons. Criticizing the Sew 'n Sweep
from the ethical determination of what an attorney ought to case, the court further stated that inadvertent disclosure is
do. It also recognizes that the receiving attorney may not the antithesis of an intentional waiver or abandonment of a
have all of the facts relevant to a legal determination, and it right, such as the attorney-client privilege.
guards against subconscious bias in the receiving attorney's
In Stewart v. General Motors Corp., the court stated that
consideration of the facts. Finally, it avoids the appearance
the traditional rule is that any disclosure waives the
of impropriety inherent in allowing a receiving attorney to
privilege. The court stated that the modern trend,
make the determination under what circumstances to advise

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purportedly now followed by a majority of courts, is that 4. See note , supra.
inadvertent disclosure may result in waiver, but the
inadvertence of the disclosure is just one of a number of 5. 486 U.S. 35 (1988).
factors to consider in determining if waiver occurred.

6. 975 F.2d 927 (1st Cir. 1992) (the warrantless seizure and
   Factors to consider include: (1) the manner of the
   reconstruction of shredded documents in a case involving
   disclosure; (2) precautions taken to prevent disclosure; (3)
   charges of filing false income tax returns did not violate the
   the extent of the disclosure; (4) actions taken to rectify
   Fourth Amendment).
   disclosures and any delay in taking such actions; (5) how
   the purposes of the privilege rule are best served; and (6)
7. 91 F.R.D. 254 (N.D. Ill. 1981).
   overriding issues of fairness and justice.
8. 531 Supp. 951 (N.D. Ill. 1982).
   The case of Resolution Trust Corp. v. First of America
   Bank is also of interest. This was a case of inadvertent
   ABA Formal Opinion:
   disclosure during discovery. The documents bore markings
   "privileged and confidential." The court stated that common 92-368
   sense and a high sensitivity toward ethics taken together
   with the importance of preserving attorney-client
   confidentiality and privilege should have immediately
   caused plaintiff's attorneys to advise defendant's counsel of
   the production. The court ordered that all copies of the
   document in plaintiff's possession and all notes relating to it
   be destroyed.
   McCafferty's, Inc. v. The Bank of Glen Burnie involved a
   communication from defendant to its counsel that had been
   torn into 16 pieces before being then placed into the trash.
   The trash was collected in a dumpster in an area marked "no
   trespassing." The court held the attorney-client privilege
   was not waived, because the defendant had evidenced, by
   tearing up the document, an intent to preserve the
   confidentiality of the document, and there was a continued
   expectation of privacy based upon the posting of the
   dumpster against unauthorized entry.
   In U.S. v. McMahon, the Fourth Circuit held that the
   attorney-client privilege was waived when the defendant
   discarded an intact letter into a dumpster located in the
   parking lot of his clinic both in respect to (1) the existence
   of the attorney-client relationship, and (2) the content of the
   document, to the extent the document contained what were
   intended to be confidential communications.
   Footnotes
9. We assume lawful possession of the information in this
   Opinion. We do not pass judgment on this fact-driven legal
   determination in the specific case that brought the issue to
   our attention, nor do we address the situation where the
   attorney knows the client obtained the information illegally.
   2."It is professional misconduct for a lawyer to: . . . .
   [e]ngage in conduct that is prejudicial to the administration
   of justice."
10. Appendix A contains a discussion of a sampling of such
    cases.