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ABA Issues New Ethics Opinion on Lawyers Receiving Third Party’s Communications With Counsel

ABA Issues New Ethics Opinion on Lawyers Receiving Third Party’s Communications With Counsel

By Matthew (Matt) Stegen

WASHINGTON, Sept. 07, 2011 — Employers’ lawyers often receive copies of communications between employees and their counsel via company computers and other devices.  The Model Rules of Professional Conduct do not require lawyers to notify the opposing counsel if they receive access to confidential emails.  However, some court decisions, civil procedures and/or laws do require such disclosure.  A new ethics opinion, issued by an American Bar Association committee, provides guidance on what to do if the law regarding disclosure is unclear, or if a law does not exist in one’s locality.

“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.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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