The ‘Oops’ Factor
The ABA has eased up on its expectations of what a lawyer should do upon receiving materials that he or she was never intended to have.
The ABA first addressed the issue in 1992 when the Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-368 (Inadvertent Disclosure of Confidential Materials). The committee noted that advances in technology made it “more likely that through inadvertence, privileged or confidential materials will be produced to opposing counsel by no more than the push of the wrong speed dial number on a facsimile machine.”
Because the ABA Model Rules of Professional Conduct did not address the issue directly, the ethics committee relied on general principles of law and professionalism by emphasizing the importance of client confidences, the law governing waiver of attorney-client privilege, the law of bailment, and the lawyer’s “personal conscience and the approbation of professional peers.”
On that basis, Opinion 92-368—often referred to as the “misdirected fax” opinion—concluded that a lawyer who mistakenly receives materials intended to be privileged or confidential should refrain from examining them, notify the lawyer who sent them and abide by that lawyer’s instructions for their return.
The ABA opinion came in for its share of criticism, particularly on grounds that, even when a lawyer receives a document that could win a client’s case, the opinion would require the lawyer to give more weight to a careless adversary’s obligation of confidentiality than to the lawyer’s own obligation of zealous representation.
The ethics committee relaxed its position a bit in 1994 when it issued an opinion stating that a lawyer who receives materials sent inadvertently had the option to review the materials to the extent necessary to determine what to do with them. In addition, the opinion indicated that the lawyer did not have to return the materials immediately if he or she disagreed with instructions from opposing counsel on returning them. In such a situation, however, the recipient lawyer must refrain from using the materials until a court issued a “definitive” ruling on their disposition. ABA Formal Opinion 94-382 (Unsolicited Receipt of Privileged or Confidential Materials).
Some Questions Remain
In 2002, 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 amendment essentially reversed Formal Opinion 92-368. Amended Rule 4.4 requires a lawyer who receives materials sent inadvertently only to notify the lawyer who sent them. The amended rule does not prohibit the recipient lawyer from reviewing the materials, nor does it require the lawyer to abide by the sending lawyer’s instruction as to disposition of the materials.
And on Oct. 1, the ethics committee formally withdrew its 1992 opinion (Formal Opinion 05-437).
In essence, lawyers who receive materials they weren’t intended to see including faxes, e-mails and other electronic transmissions have no ethical obligation other than to inform the sender.
But there is some wiggle room. The comment to amended ABA Model Rule 4.4 states that some issues, such as whether a lawyer must return the materials or whether the privileged nature of the materials is waived, are “questions of law beyond the scope of the rule” that lawyers should decide as “a matter of professional judgment ordinarily reserved to the lawyer.”
Meanwhile, no uniform rule regarding the treatment of materials that are inadvertently sent to opposing counsel has evolved at the state level. The best solution may be to be very careful before hitting the “send” button.
