GPSolo Magazine - March 2004
Brother’s Keeper: Must You Protect Opponents’ Confidentiality?
Both our legal system and our ethics rules are a blend of adversarial and cooperative elements. This article addresses the question of whether a lawyer must adopt a cooperative or adversarial stance in regard to taking advantage of an opponent’s inadvertent disclosure of confidential information.
Confidentiality basics. The obligation to protect client confidences is a cornerstone of legal ethics. Model Rule 1.6 directs that “[a] lawyer shall not reveal information relating to representation of a client” and relieves the lawyer of this duty only if the client consents or an exception applies. The client is protected not only by Model Rule 1.6’s ban on revealing client information, but also by Model Rule 1.8(b)’s restriction on use of client information other than revelation. Rule 1.8(b) states that “[a] lawyer shall not use information relating to the representation of a client to the disadvantage of the client”—again unless the client consents or certain exceptions apply.
The focus in confidentiality is almost exclusively on the lawyer’s obligations in dealing with his or her own client’s information. Typically, the issues that most often put lawyer confidentiality in the spotlight have to do with whether and when the lawyer’s confidentiality obligation to his or her own client should yield to the interests of the public or a third person.
Obligation to another lawyer’s client. Model Rules 1.6 and 1.8(b), the primary rules laying out the obligations of a lawyer regarding confidential information, are silent on what obligations an opposing lawyer may have toward the information Rules 1.6 and 1.8(b) strive so zealously to protect.
A lawyer’s potential receipt of an opposing client’s confidential information is encountered most frequently in the context of the anti-contact rule found in Model Rule 4.2. It provides that “[i]n representing a client, a lawyer shall not communicate” about the representation with another lawyer’s client. The anti-contact rule says nothing about what a lawyer should do with an opposing client’s information if it is received. But the anti-contact rule’s ban on one lawyer communicating with another lawyer’s client is based in large part on preventing one lawyer from obtaining confidential information from the client of an opposing lawyer.
The inadvertent disclosure of confidential client information by an opposing lawyer may occur in a number of ways, such as a misdirected fax or e-mail or items being mistakenly placed in the wrong envelope. A recent amendment to Model Rule 4.4(b) provides that “[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” “Document” includes “e-mail or other electronic modes of transmission subject to being read or put into readable form.” A lawyer may choose to return a mistakenly sent document “unread” and, when not required to do so by applicable law, “the decision to voluntarily return the document is a matter of professional judgment ordinarily reserved to the lawyer.”
The cooperative approach. The ABA, in a Formal Opinion predating Model Rule 4.4(b), took a clearly cooperative approach to the issue of a lawyer’s obligation toward an opposing client’s confidential information where the lawyer receives confidential materials “under circumstances where it is clear that the materials were not intended for the receiving lawyer.” The committee concluded that the lawyer should (1) not examine the materials once the error is discovered; (2) notify the sending lawyer; and (3) abide by the sending lawyer’s instructions about what to do with the materials.
The adversarial approach. A California appellate court in Aerojet-General Corp. v. Transport Indemnity Ins., 22 Cal. Rptr. 862 (1993), held that a lawyer did not have to refrain from examining or using inadvertently disclosed confidential information, reasoning that the lawyer’s “professional obligation demands that he utilize his knowledge about the case on his client’s behalf.” In addition, the court found no obligation to notify opposing counsel of his or her error. The Texas Supreme Court, in In re Meador, 968 S.W.2d 346 (Tex. 1998), held that “a lawyer [who] receives privileged materials because the opponent inadvertently produced them in discovery . . . ordinarily has no duty to notify the opponent or voluntarily return the materials.”
Compromise positions. In short, the ABA and the California Court of Appeal staked out opposing poles— the ABA adopting a purely cooperative approach and the California court a purely adversarial resolution. Ethics committees in some states, such as Virginia and North Carolina, have followed the ABA approach. In contrast, no state ethics committee appears to have gone as far in the adversarial direction as the California court. Further, while the ethics committees divide on examination and use of the information at issue, they consistently require notification by the receiving lawyer to the opposing lawyer.
Practical implications. Regardless of whether a lawyer is inclined toward the cooperative or adversarial approach in handling inadvertently disclosed confidential information, the opinions and cases in this area suggest a number of practical implications.
First, lawyers should be careful to guard against accidental as well as purposeful disclosure of confidential information by themselves or others working at their firms. Model Rule 5.3 requires lawyers to take reasonable measures to ensure that nonlawyers comply with the professional obligations imposed on lawyers, such as confidentiality. A lawyer who fails to take reasonable steps to ensure that employees maintain client confidentiality may face professional discipline as well as a malpractice action.
Second, although there is an increasing body of ethics opinions and cases on this question, there is still a good chance that lawyers who find themselves in this position will not have any guidance in their jurisdictions. If in doubt about what to do with confidential information, taking an adversarial approach and examining and making use of the information run the risk of sanctions and disqualification. Following the ABA approach reduces these risks.
Finally, the law of theft may apply to what is received. If the lawyer receives an errant fax or e-mail, it is unlikely to be considered “property” that could be the subject of theft. But if the item received is an original file, it may well be considered personal property—and a Maine Ethics Committee points out that it is a crime to retain mistakenly delivered property of another.
Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri.
Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.
For More Information About The Criminal Justice Section
- This article is an abridged and edited version of one that originally appeared on page 43 of Criminal Justice, Fall 2003 (18:3).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/crimjust/
- Periodicals: Criminal Justice, 64-page quarterly magazine; Criminal Justice newsletter, 3 times per year; White Collar Crime newsletter, 4-5 times per year.
- Books and Other Recent Publications: The Child Witness in Criminal Cases; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers on Representing Noncitizens; The Federalization of Criminal Law; The Environmental Crimes Case; Annual Survey of Supreme Court Decisions; Fourth Amendment Handbook, 2d ed .; Ethical Problems Facing the Criminal Defense Lawyer; Portable Guide to Federal Conspiracy Law: Developing Strategies for Civil and Criminal Cases; Practice Under the Federal Sentencing Guidelines; Juvenile Justice Standards, Annotated; ABA Standards for Criminal Justice; Less Boring Direct Examination (videotape) ; The Science of Cross-Examination (videotape) .