This article describes the various rules and ethical opinions that govern inadvertent disclosures of privileged information, reiterates the importance of maintaining the attorney-client privilege, touches on some scenarios where sanctions may well occur, and suggests procedures to both comply with the rules and to protect the privilege to which every client—yours and your opponent’s—is entitled.
The federal and state rules. The Federal Rules of Civil Procedure and many state court rules have adopted a nearly identical procedure for handling inadvertent disclosures of privileged information. At both the state and federal level, if information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim must notify any party that received the information of the claim and the basis for it. After being notified, a party is promptly to return, sequester, or destroy the specified information and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Note that the “claim of privilege” is not restricted to attorney-client privilege and that many privileges are recognized in both the federal and state law. Also, the duty of initial notice is on the producing/sending party, not the receiving party.
The Model Rules and ethics opinions. The American Bar Association (ABA) ethics opinions and the Model Rules of Professional Conduct (Model Rules) display a somewhat tortured history of how to handle inadvertently disclosed privileged information. On November 10, 1992, the ABA Ethics Committee issued Formal Opinion 92-368, “Inadvertent Disclosure of Confidential Materials,” in which it opined that a lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or that otherwise could be deemed confidential, under circumstances where it is clear that these materials were not intended for the receiving lawyer, should refrain from examining the materials, notify the lawyer who sent them of receipt of the materials, and abide by the instructions of the lawyer who sent them.
In February 2002 an amendment to Rule 4.4, “Respect for Rights of Third Persons,” not only directly addressed the precise issue discussed in Formal Opinion 92-368 but narrowed the obligations of the receiving lawyer. The amendment added Rule 4.4(b), which states 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.”
Rule 4.4(b) thus only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. It does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer.
Because the conclusion of Formal Opinion 92-368 was in conflict with amended Rule 4.4, the ABA Ethics Committee withdrew the earlier opinion in 2005 by issuing ABA Formal Opinion No. 05-437. Unfortunately, by that time many states had adopted their own versions of the revised Model Rules that reflected the stance taken by the earlier ethics opinion, continuing to place a duty of notice on the recipient. Thus the states have adopted varying approaches to the Model Rules. This is acknowledged in the most recent ABA Formal Opinion 11-460 (August 4, 2011).
Limiting accidental waiver. Most courts are reluctant to endorse any theory of “accidental” waiver. To evaluate privilege waivers by inadvertent conduct, federal courts use a balancing test contained within Federal Rule of Evidence 502(b), which provides that:
[w]hen made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver . . . if: 1. the disclosure is inadvertent; 2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Sanctions for violation. Frequently, the sanction for violation is severe and includes disqualifying the receiving lawyer and that lawyer’s entire firm from any further work in that matter.
Such sanctions occurred in Maldonado v. New Jersey (225 F.R.D. 120 (D.N.J. 2004)). In this employment discrimination case, the plaintiff found a letter in his workplace mailbox, reviewed it, and then handed it over to his attorney. The letter contained the defendants’ case strategy. The court found that Maldonado was not culpable of sanctionable conduct because no evidence existed that he committed a deliberate or bad faith act. Given the alleged environment at work and Maldonado’s level of legal understanding, the court found it understandable that he gave the letter to his attorney. But the court also observed that “Maldonado’s attorney is the safety net in this situation, and is charged with certain ethical obligations as it relates to the privileged materials.”
The court went on to conclude that plaintiff’s counsel did not properly perform their “safety net” function because of the following facts: Maldonado’s present counsel had access to privileged material for several months before giving notice; plaintiff’s counsel reviewed and relied on the letter in formulating Maldonado’s case; the letter was highly relevant and prejudicial to the defendants’ case; plaintiff’s counsel did not adequately notify opposing counsel; the defendants took reasonable precautions to protect the letter and could not be found at fault for its disclosure; and Maldonado would not be severely prejudiced by the loss of his counsel of choice. The result was that plaintiff’s counsel were disqualified from the case.
Maldonado may be criticized as outdated because it is based on the now-rescinded ABA Formal Opinion 92-368. But the key is New Jersey Ethics Rule 4.4(b), which remains as it was in 2004 when Maldonado was decided and provides that the lawyer must not read the document, or if “he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.”
Responding to inadvertent receipt. “When the law governing potential disclosure is unclear, the lawyer need not risk violating a legal or ethical obligation” (ABA Formal Opinion 11-460). The following steps should be followed if documents that you believe may be privileged are inadvertently sent to you. Stop reading the documents immediately. Draft a memorandum regarding the facts of revelation of the documents and describe them briefly without looking at the detailed contents of the documents. Sequester and secure the documents and memorialize them, preferably using personnel not working directly on the same client matter. Draft a letter to the sending attorney giving notice of the revelation, in compliance with the applicable court rule, demanding an immediate response regarding any claim of privilege, with a description of the required privilege log. Do not waive the right to demand that the documents be produced, and do not concede the privilege claim. Inform the sending attorney that you are submitting the material to the court, under seal, and requesting that the court rule on it at a hearing unless the defendant waives the privilege before then. Finally, draft and send a pleading notifying the court of the documents, filing them under seal. Do this promptly after receipt of the documents.
ABA Tort Trial and Insurance Practice Section
This article is an abridged and edited version of one that originally appeared on page 40 of The Brief, Winter 2012 (41:2).
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.
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