Reporter’s Explanation of Changes
TEXT:
Paragraph (b): Add material on obligations of lawyer upon receipt of inadvertently sent document
Numerous inquiries have been directed to ethics committees regarding the proper course of conduct for a lawyer who receives a fax or other document from opposing counsel that was not intended for the receiving lawyer. ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-368 advised that the receiving lawyer is obligated to refrain from examining the materials, to notify the sending lawyer and to abide by that lawyer’s instructions. That opinion has been criticized, in part because there is no provision of the Model Rules directly on point. The Commission decided that this Rule should require only that the lawyer notify the sender when the lawyer knows or reasonably should know that material was inadvertently sent, thus permitting the sending lawyer to take whatever steps might be necessary or available to protect the interests of the sending lawyer’s client.
COMMENT:
[1] A phrase has been added to this Comment identifying "intrusions into privileged relationships" as among the third-party rights a lawyer must respect.
[2] This new Comment explains the obligations imposed by paragraph (b). It makes clear that the Rule does not address possible additional obligations of the lawyer that might be imposed by other law. Nor does it address the legal duties of a lawyer who receives a document that the lawyer knows or believes may have been wrongfully obtained by the sending person. Finally, the Comment explains that, for purposes of the Rule, the term "document" includes e-mail or other electronic modes of transmission.
[3] This new Comment lends support to those lawyers who voluntarily choose to return a document unread when they know or reasonably believe that the document was inadvertently sent. The Commission believes that this is a decision ordinarily reserved to the lawyer under Rules 1.2 and 1.4 and that a lawyer commits no act of disloyalty by choosing to act in accordance with professional courtesy.