NYCLA COMMITTEE ON PROFESSIONAL ETHICS
ETHICAL OBLIGATIONS UPON RECEIPT OF INADVERTENTLY DISCLOSED PRIVILEGED INFORMATION
IF A LAWYER RECEIVES INFORMATION WHICH THE LAWYER KNOWS OR BELIEVES WAS NOT INTENDED FOR THE LAWYER AND CONTAINS SECRETS, CONFIDENCES OR OTHER PRIVILEGED MATTER, THE LAWYER, UPON RECOGNITION OF SAME, SHALL, WITHOUT FURTHER REVIEW OR OTHER USE THEREOF, NOTIFY THE SENDER AND (INSOFAR AS IT SHALL HAVE BEEN IN WRITTEN OR OTHER TANGIBLE FORM) ABIDE BY SENDER’S INSTRUCTIONS REGARDING RETURN OR DESTRUCTION OF THE INFORMATION
DR l-102(A)(4); DR 4-l01(A)-(D); DR 7-1O1(A)(1); DR 7-106(C)(5); EC 4-1; EC 7-1; EC 7-38; EC 9-2
Does a lawyer have any ethical obligations upon receipt of inadvertently disclosed privileged information? If so, what are those obligations?
OPINION: Because these questions raise novel and important ethics issues upon which the Code of Professional Responsibility and existing New York ethics opinions and case law provide little guidance, the Committee offers its views to assist lawyers who are with growing frequency faced with the need to address the problems created by inadvertent disclosures of privileged information.
The Problem of Inadvertent Disclosure of Privileged Information:
The practice of law has been transformed by technological advances which permit lawyers all but instantly to transmit documents and otherwise communicate with clients and others wherever in the world they may be. Communication by fax machine and e- mail now occurs with ever increasing frequency, less premeditation, and greater risk of going astray than ever before. Although the risks associated with communicating by fax machine or e-mail do not differ in kind from those that arise while having a privileged communication with a client on the telephone or sending a privileged document through the mails, resort to fax machines and e-mail creates a risk of inadvertent disclosure of privileged information, and non-discovery of one’s own inadvertence, that differs in degree from that which attends more traditional modes of communication. It is far easier for a lawyer, or one acting at his or her direction, to misaddress a fax or e-mail, thereby placing in the hands of someone other than the client, and often an adversary, the client’s privileged information. Because the possibility is greater than ever before that a lawyer may face the problem of inadvertent disclosure of privileged information – either as the sender or the recipient – at some point in the lawyer’s career, it is incumbent upon the organized bar to provide clear guidance to lawyers concerning their ethical obligations upon receipt of such information. Unfortunately, for New York lawyers, the Code of Professional Responsibility offers scant guidance in this regard.
The Code Offers Little Guidance to Lawyers Confronting This Problem:
There is no Disciplinary Rule or Ethical Consideration governing a lawyer’s ethical obligations upon receipt of inadvertently disclosed privileged information. Nor are any formal ethics opinions interpreting the Code directly in point, and the case law, which is concerned primarily with the separate question whether the disclosure should be deemed to have affected a waiver of the attorney-client privilege or attorney work product doctrines, offers little guidance for New York lawyers with respect to the legal ethics issues these disclosures often raise.
The Code’s failure to provide explicit guidance to lawyers who are forced to confront the problems inadvertent disclosures create is particularly unfortunate because lawyers may decide to resolve these problems by choosing between two fundamental – and in such cases conflicting – principles upon which the Code is based: preservation of client confidences and zealous representation.
The ethical obligation to preserve the confidences and secrets of a client is the sine qua non of the attorney-client relationship. Canon Four of the Code states: “[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer.” EC 4-1. Specifically, the Code requires lawyers to preserve the confidences and secrets of their clients, and subjects them to discipline for failure to do so, except in a few specifically-enumerated circumstances where disclosure is permitted. See DR 4-1O1(A)-(D). In seeming contradiction, the ethical duty to represent a client zealously is also central to the attorney-client relationship, and to the proper functioning of the adversary system of justice more broadly. The Code provides that “[t]he duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law… “ EC 7-1. The Code requires lawyers to represent their clients zealously, and subjects them to discipline for failure to seek the lawful objectives of their clients through reasonably available means permitted by law or the Disciplinary Rules. See DR 7- 101(A) (l).
Where a lawyer receives information that has been inadvertently disclosed, these two principles are drawn into conflict. On the one hand, respect for the principle that client confidences and secrets should be preserved, whether the information belongs to the receiving lawyer’s client or that of another, would appear to require that the lawyer refrain from reviewing or making other use of the information. On the other hand, adherence to the principle of zealous advocacy would seem to require just the opposite: that the lawyer use this and any other information lawfully obtained to the full advantage of his or her client. See generally Trina Jones, Inadvertent Disclosure of Privileged Information and the Law of Mistake: Using Substantive Legal Principles to Guide Ethical Decision Making, 48 Emory L. J. 1255, 1307 (Fall 1999) (observing that “inadvertent disclosure cases involve the collision of two fundamental concepts underlying the rules of professional conduct and the law of lawyering: partisan advocacy and confidentiality”).
Of course, that two or more principles of legal ethics underlying the Code may come into conflict is hardly unprecedented. Nor is it uncommon for lawyers to confront and resolve difficult ethical issues without a Disciplinary Rule or Ethical Consideration squarely in point to guide their decision-making. Nevertheless, inadvertent disclosures of privileged information increasingly create difficult ethical issues for lawyers which may have significant consequences not only for themselves and the clients involved, but for the legal system as whole. For these lawyers, the Code’s silence on these issues is truly deafening.
Guidance from National, State and Other Local Bar Associations Is Not Uniform:
The dearth of guidance available to New York lawyers is more troubling given the lack of uniformity among those national, state and local bar associations that have sought to define a lawyer’s ethical obligations upon receipt of inadvertently disclosed privileged information. That national, state and local bar associations disagree on the subject strongly suggests a need for bar associations to provide guidance to New York lawyers in confronting these issues.
The leading authority seeking to define a lawyer’s ethical obligations upon receipt of inadvertently disclosed privileged information is the ABA Committee’s Formal Opinion No. 92-368, entitled “Inadvertent Disclosure of Confidential Materials,” issued on November 10, l992. In Formal Opinion 92-368, the ABA Committee opined 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. The ABA Committee offers the following bases for the result it reached in Formal Opinion 92-368: 1) “the importance the Model Rules give to maintaining client confidentiality”; 2) “the law governing waiver of the attorney-client privilege”; 3) “the law governing missent property”; 4) “the similarity between circumstances here addressed and other conduct the profession universally condemns”; and 5) “the receiving lawyer’s obligations to his client.” Id.
In brief, the ABA Committee begins by observing that because “the concept of confidentiality is a fundamental aspect of the right to the effective assistance of counsel,” this principle strongly supports a rule requiring lawyers to refrain from reviewing inadvertently disclosed privileged information. Id. Next, the ABA Committee considers several competing principles and interests that suggest a contrary result, including, among others, the principle requiring zealous advocacy within the bounds of the law. Id The ABA Committee ultimately concludes that these competing principles, although important, “pale in comparison to the importance of maintaining confidentiality.” Id. The ABA Committee also finds support for the result it reaches by analogizing to the law of waiver and missent property, and based upon considerations of “good sense and reciprocity.” Id.
Although it remains the leading authority on the question of a lawyer’s ethical obligations upon receipt of inadvertently disclosed privileged information, Formal Opinion 92-368, of course, does not interpret the New York Code of Professional Responsibility. In addition, Formal Opinion 92-3 68 has not been uniformly followed by the state and local bar associations that have considered the issue. According to a 1999 survey of state bar associations conducted by Professor Trina Jones of Duke University School of Law, although several states have followed Formal Opinion 92-368 in interpreting their own codes or rules of attorney conduct, a roughly equal number either have declined to do so, or issued opinions that are at odds with Formal Opinion 92-368, while nearly a majority of the states, including New York, have no ethics opinions concerning inadvertent disclosure of privileged information. Jones, Inadvertent Disclosure, 48 Emory L. J. at 1337 nn.46-47. The local bar associations that have examined the issue, including the ABCNY Committee in a 1995 report, similarly have given Formal Opinion 92-368 mixed reviews. Formal Opinion 92-368 also has been criticized by some commentators, most notably Professor Monroe Freedman of the Hofstra University Law School.
Guidance for New York Lawyers:
The Committee believes that a lawyer has an ethical obligation to refrain from reviewing inadvertently disclosed privileged information. The Committee also believes that, for all the reasons articulated in Formal Opinion 92-368 which the Committee hereby adopts and incorporates by reference, there is now ample and compelling justification for requiring lawyers to respect this prohibition. Recognizing that lawyers have an ethical obligation upon receipt of inadvertently disclosed privileged information supplements and enhances the Code’s existing requirement that lawyers preserve the confidences and secrets of their own clients. See DR 4-10l(A)-(D), DR 4-102(E). In the Committee’s view, it is appropriate that all lawyers share responsibility for ensuring that the fundamental principle that client confidences be preserved – the most basic tenet of the attorney-client relationship – is respected when privileged information belonging to a client is inadvertently disclosed. In light of the foregoing, the Committee hereby offers the following guidance to lawyers concerning their ethical obligations upon receipt of inadvertently disclosed privileged information:
If a lawyer receives information which the lawyer knows or believes was not intended for the lawyer and contains secrets, confidences or other privileged matter, the lawyer, upon recognition of same, shall, without further review or other use thereof, notify the sender and (insofar as it shall have been in written or other tangible form) abide by sender’s instructions regarding return or destruction of the information.
The Committee’s guidance is modeled on the rule announced by the ABA Committee in Formal Opinion 92-368, as well as the ABA’s recently adopted Rule 4.4(b) of the Model Rules of Professional Responsibility, and therefore is supported by the views expressed by these bodies. For this reason, the Committee’s guidance also draws support from the ethics opinions issued by the state bar associations that have endorsed the ABA Committee’s views as expressed in Formal Opinion 92-368.
The Committee’s guidance is also supported by the views the ABCNY Committee expressed in a 1995 report on the subject. In that report, the ABCNY Committee concurred with the result reached in Formal Opinion 92-368 and the reasoning that lead the ABA Committee to that result which is described above. See ABCNY Committee, Report: Ethical Obligations Arising Out of an Attorney’s Receipt of Inadvertently Disclosed Information, The Record, vol. 50, no. 6 at 664-67. The Committee hereby adopts the ABCNY Committee’s report, with one exception detailed below.
Finally, while the Committee acknowledges that Formal Opinion 92-368 has been criticized for failing to provide support from the text of the Model Rules for the result announced there, the Committee does not agree that with the view implicit in such attacks that a lawyer has no ethical obligations except as expressly set forth in the applicable code or rules of attorney conduct. In fact, the New York Code of Professional Responsibility is expressly to the contrary. The Code states that “[w]hen explicit ethical guidance does not exist a lawyer should determine prospective conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.” EC 9-2. The Code also states that, in the litigation context, a lawyer shall not “[flail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply.” DR 7-l06(C)(5); see EC 7-38. Thus, the Code expressly contemplates that a lawyer’s ethical obligations may flow from sources other than the black-letter of the Code, including “local customs of courtesy and practice” of the organized bar.
Indeed, it is precisely in cases such as this where no Disciplinary Rule or Ethical Consideration expressly governs a lawyer’s ethical obligations that it is incumbent upon the organized bar to provide guidance to lawyers in an effort to ensure that their conduct “promotes public confidence in the integrity and efficiency of the legal system and the legal profession.” EC 9-2. This is the purpose for which the Committee offers the guidance set forth in this opinion.
Inadvertent Disclosure: Three Scenarios:
To make more concrete the Committee’s guidance offered in this opinion, the Committee applies this guidance to the following scenarios which illustrate examples of inadvertent disclosures of privileged information.
Scenario One: The Errant Fax:
Lawyer A represents Mr. Adams in a lawsuit against Mr. Black. Mr. Black is represented by Lawyer B. While representing Mr. Adams, Lawyer A receives a fax addressed to Mr. Black from Lawyer B. The fax appears on its face to contain information that is subject to the attorney-client privilege.
Because Lawyer A knows both that the fax was not intended for Lawyer A, and contains secrets, confidences or other privileged matter, Lawyer A shall, without further review or other use thereof, notify Lawyer B and abide by Lawyer B’s instructions regarding return or destruction of the fax.
Scenario Two: The Mysterious Memorandum
Upon receipt of a request for production of documents, Lawyer C and Lawyer C’s associates review the files of their client, Ms. Clark. Lawyer C subsequently produces forty boxes of materials to opposing counsel, Lawyer D. Unbeknownst to Lawyer C, one of the documents is a memorandum from Lawyer C to Ms. Clark discussing the lawsuit. The first page of the memorandum, which identifies Ms. Clark and Lawyer C, is not attached to the copy that has been produced. The memorandum contains information that is subject to the attorney-client privilege.
Because Lawyer D received the memorandum in the context of a document production, and because the copy that was produced neither identifies Ms. Clark or Lawyer C nor otherwise indicates that the information it contains may be privileged, Lawyer D does not know or have reason to believe that the memorandum was not intended for Lawyer D or that it contains secrets, confidences or other privileged matter. Lawyer D has no obligation to notify Lawyer C that the memorandum was produced and Lawyer D may review or make other use of the information it contains. In the event Lawyer D later comes to know or believe that the information the memorandum was not intended for Lawyer D and contains secrets, confidences or other privileged matter, Lawyer D shall, without further review or other use thereof, notify Lawyer C and abide by Lawyer C’s instructions regarding return or destruction of the memorandum.
Scenario Three: The Forgotten File Following a deposition held in a conference room at Lawyer E’s law firm, Lawyer E ‘s adversary, Lawyer F, inadvertently leaves two files containing confidential information on the table. Lawyer E has just noticed the files.
Guidance Because Lawyer E knows both that the files were not intended for Lawyer E and contain secrets, confidences or other privileged matter, Lawyer E shall without review or other use thereof, notify Lawyer F and abide by Lawyer F’s instructions regarding return or destruction of the files. It should be noted that Lawyer E is also prohibited from opening the files or taking other steps to learn their contents by DR 1-1 02(A)(4) which prohibits a lawyer from “[e]ngag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” In the Committee’s view, such conduct would be dishonest within the meaning of DR 1-102(A)(4). Cf. Lipin v. Bender, 193 A.D.2d 424, 597 N.Y.S.2d 340 (1st Dep’t), aff’d, 84 N.Y.2d 562, 644 N.E.2d 1300, 620 N.Y.S.2d 744
A lawyer has ethical obligations upon receipt of inadvertently disclosed privileged information. If a lawyer receives information which the lawyer knows or believes was not intended for the lawyer and contains secrets, confidences or other privileged matter, the lawyer, upon recognition of same, shall, without further review or other use thereof, notify the sender and (insofar as it shall have been in written or other tangible form) abide by sender’s instructions regarding return or destruction of the information.