“If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law,” reads Formal Opinion 11-460, issued by the ABA Standing Committee on Ethics and Professional Responsibility. “If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.”
The opinion explores this topic through a hypothetical scenario in which an employee has filed a lawsuit against her employer; the employer copies the contents from her computer, and gives it to its outside counsel for possible use against counsel. In the process of reviewing the contents the company finds emails clearly marked “attorney-client confidential communication.”
“This committee found that Rule 4.4(b) does not obligate a lawyer to notify opposing counsel that the lawyer has received privileged or otherwise confidential materials of the adverse party from someone who was not authorized to provide the materials, if the materials were not provided as ‘the result of the sender’s inadvertence,’” the opinion continues.
When there is no law or court requiring disclosure, then the decision must be made by the employer-client. “Even when there is no clear notification obligation, it will ordinarily be in the employer-client’s best interest to give notice and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to use them and, if possible, before the employer’s lawyer reviews them,” the opinion noted.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships. Opinions are dated to reflect when committee members voted, rather than the publication date.
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