‘Oops’ Redux

The standing committee on Ethics and Professional Responsibility has completed the task of bringing its opinions into accord with the ABA’s current position on what a lawyer should do upon the unsolicited receipt of privileged or confidential materials

Before 2002, the Model Rules did not directly address the issue. But that year, the ABA House of Delegates adopted a recommendation of the Commission on Evaluation of the Rules of Professional Conduct to amend Model Rule 4.4 (Respect for Rights of Third Persons). The amended rule requires a lawyer who receives materials sent inadvertently only to notify the lawyer who sent them. The receiving lawyer is not prohibited from reviewing the materials, nor is the lawyer required to abide by the sending lawyer’s instruction as to their disposition.

In effect, amended Model Rule 4.4 reversed the position taken by the ethics committee in two opinions issued during the early 1990s.

Accordingly, the committee withdrew Formal Opinion 92-368 last October. Relying on general principles of law and professional conduct rather than any specific language in the Model Rules, the opinion had concluded that a lawyer should refrain from examining inadvertently sent materials, notify the lawyer who sent them and abide by that lawyer’s instructions for returning them.

And then in May, the committee issued Formal Opinion 06-440, in which it withdrew another earlier opinion on the issue. Formal Opinion 94-382 had stated that a lawyer who receives such materials may review them to the extent necessary to determine what to do with them. It also indicated that the lawyer did not necessarily have to return the materials immediately if he or she disagreed with opposing counsel’s instructions on returning them.

Reaffirming its interpretation of revised Model Rule 4.4, the committee states that the rule “requires only that a lawyer who receives a document relating to the representation of the lawyer’s client, and who knows or reasonably should know that the document was inadvertently sent, shall promptly notify the sender. The rule does not require refraining from reviewing the materials or abiding by instructions of the sender.”

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