Legal Ethics

NYC Bar: Lawyers Must Tell Opponents If Documents Are Mistakenly Sent, But May Be Able to Use Them

An opinion released Monday by the New York City Bar Association attempts to provide a clear pathway through an ethical thicket concerning a lawyer’s duties when he or she receives material from an opponent that was sent by mistake.

And Formal Opinion 2012-1 does provide bright-line rules on several fronts, saying that the lawyer must promptly notify the sender, under Rule 4.4(b) of the New York Rules of Professional Conduct, and making clear that the rule applies to all communication, both electronic and hard-copy, regardless of who sends it, according to Reuters.

However, lawyers must now decide for themselves how to deal with a gray area that has been created by the new ruling: Whether it is ethically permissible to use the material, assuming that the notification requirement has been satisfied. In this respect, the new opinion is less restrictive than a prior ethics opinion, which had banned use of the material and has now been withdrawn, the article explains.

Depending on the facts and circumstances, it may be appropriate to use the material, the opinion says. However, it is also appropriate for lawyers to decide for themselves that they will not use inadvertently produced material, as a matter of principle.

Meanwhile, “counsel would do well … to remember the New York State Bar Association comment that ‘a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion,’ ” the opinion notes.

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