Criminal Justice Section  


Criminal Justice Magazine
Fall 2003
Volume 18 Number 3


Peter A. Joy and

Kevin C. McMunigal

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. Both are contributing editors to Criminal Justice magazine.

Brother’s Keeper: Must You Protect Opponent’s Confidentiality?

Lawyers usually think of the American legal system as adversarial and view legal ethics rules as reflecting that adversarial quality. But such a description is misleading. Both our legal system and our ethics rules are actually a blend of adversarial and cooperative elements.

Model Rule 3.3(a)(2) provides a simple but characteristic example. It states that "[a] lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." It imposes a cooperative duty to inform a state trial court of a directly adverse case or statute from that jurisdiction that the opponent has not already brought to the court’s attention. But in regard to cases or statutes that are adverse to the lawyer’s position but from another jurisdiction or not directly on point, the lawyer is allowed to take an adversarial approach, leaving it to the opposing lawyer or the court to find the adverse authority. Rule 3.3(a)(2) thus blends both cooperative and adversarial elements.

This column 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. Comment 3 to Model Rule 1.6 gives this obligation generous scope by providing that "[t]he confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source ." 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.

Utilitarian reasoning underlies this protective attitude toward client information. If clients know that their information is protected from revelation or other use that may disadvantage them, they will freely consult with and fully disclose that information to their lawyers. In addition, confidentiality restrictions encourage lawyers aggressively to seek all information relevant to the legal issues confronting clients. The thinking here is that the more information lawyers have, the better they will advise and assist clients, and that both clients and society are thus well served.

The focus in confidentiality is almost exclusively on the lawyer’s obligations in dealing with his or her own client’s information. Model Rules 1.6 and 1.8(b) both focus on the lawyer’s handling of client 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. For example, the Ethics 2000 Commission’s proposals to expand the lawyer’s ability to reveal client information to remedy client fraud and prevent future client crime proved to be lightning rods for controversy.

Obligation to another lawyer’s client

What obligations, though, does a lawyer have to maintain the confidentiality of someone who is not his or her client, but the client of another lawyer, especially opposing counsel? 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. Neither the Model Rules prior to a recent amendment nor the Model Code directly addresses the question.

A lawyer’s potential receipt of an opposing client’s confidential information is contemplated 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’s lawyer’s client. The anti-contact rule, which has received great attention in recent years in both the criminal and civil contexts, 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 rule reflects the view that one lawyer should not be in possession of an opposing client’s confidential information and that lawyers should restrict their conduct to reduce the risk of receiving such information.

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 or included in document production during litigation. This issue has taken center stage in a series of ethics opinions and cases and appears in a number of professional responsibility teaching texts. The issue even appeared on prime-time television’s Law and Order when a lawyer mistakenly sent prosecutor Jack McCoy an internal defense memorandum about an interview with a witness the defense did not plan to call.

In the face of mounting interest in inadvertent disclosures of confidential information and as a result of recommendations from the Ethics 2000 Commission Report, the ABA amended Model Rule 4.4 in an attempt to provide some guidance. 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." Comment 2 to this new provision defines "document" to include "e-mail or other electronic modes of transmission subject to being read or put into readable form." It states that whether the lawyer must return the document or whether any claim of privileged status for the document may have been waived is "a matter of law beyond the scope of these Rules." Comment 3 states that 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 such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4."

The cooperative approach

The ABA in its Formal Opinion 92–368 (1992), which predates 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. The committee was asked to address the obligations of a lawyer who receives apparently 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. These conclusions were based primarily on the importance of confidentiality—the view that confidentiality is so important that the opposing lawyer must cooperatively assist in remedying errors by an opposing lawyer that would undermine confidentiality. The confidentiality rule itself is highly adversarial. Ironically, the committee imposed a cooperative obligation on one lawyer to help another lawyer maintain an adversarial obligation.

The adversarial approach

Not all jurisdictions, however, adopt the cooperative approach. For example, the year following the ABA’s issuance of Opinion 92–368, a California appellate court expressed a dramatically different view of the appropriate response for a lawyer who receives inadvertently disclosed confidential information. Rather than refrain from examining or using the information, the court in Aerojet-General Corp. v. Transport Indemnity Ins., 22 Cal. Rptr. 862 (1993), concluded that the lawyer’s "professional obligation demands that he utilize his knowledge about the case on his client’s behalf."( Id. at 867–68.) In addition, the court found no obligation to notify opposing counsel of his or her error. More recently, 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." ( Id. at 352.)

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 (Opinion 1702 (1997)) and North Carolina (RPC 252 (1997)), 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 in the Aerojet case. A number, though, have taken various compromise positions.

Oregon, for example, follows the ABA approach, but points out that if the material has already been examined, the receiving lawyer may seek court permission to use the information learned. (Formal Opinion No.1998–150.) Similar to the recent amendment to Model Rule 4.4, Utah Opinion No.99–01 (1999) and Florida Opinion 93–3 (1994) simply require the receiving lawyer to notify the opposing lawyer without requiring the receiving lawyer to return the documents or follow the sending lawyer’s instructions regarding disposition. Those jurisdictions leave it to the sending lawyer to take action, such as seeking judicial assistance.

The District of Columbia (Opinion No.256 (1995)) and Illinois (Opinion No.98–04 (1999)) prescribe a cooperative or adversarial approach depending on the mental state of the receiving lawyers. If receiving lawyers know before examining the documents that a mistake was made, they must follow the ABA prescription. They cannot examine or use the documents and must notify the opposing lawyer and return the documents. But if they have no such knowledge prior to examining the documents, they are free to examine and use them.

Maine Opinion No.146 (1994) and Ohio Opinion 93–1l (1993) come closest to the California adversarial resolution. Both allow the lawyer to examine and use the information without addressing the lawyer’s mental state. Both require the lawyer to notify the sending lawyer of the error.

Although the committees divide on examination and use of the information at issue, they consistently require notification. This makes sense for a number of reasons. Notification allows the opposing lawyer to challenge retention and use of the information in a timely fashion. The sending lawyer, for example, might ask a judge to resolve the matter. Judges are in a better position to do so than receiving lawyers because there is no risk that adversarial interest will cloud their judgment and they will have a greater access to the facts surrounding the disclosure, having heard from both sides. If a receiving lawyer never notifies the sending lawyer, the receiving lawyer will not, in most cases, know what led to the disclosure. Notification also keeps surprise from compounding the impact of the sending lawyer’s error and resulting harm to the client, which may be significant. It also reduces the appearance of dishonesty in the receiving lawyer’s examining and using the information.

An array of rationales

The ethics committees that have addressed this issue have drawn on an array of rationales. Some have adopted one view or the other without much elaboration. But a number have explored the reasoning behind their particular resolution.

Those that opt for the cooperative approach emphasize the importance of confidentiality not just to the lawyer’s client, but to the overall administration of justice as well. By helping protect confidentiality for an opposing client, the receiving lawyer serves the interests of the justice system. Other values invoked in support of the cooperative view are the receiving lawyer’s duty of honesty and courtesy to other lawyers as well as maintaining the public image of lawyers. Finally, the cooperative view also appears to be based on a pragmatic concern about use of judicial time and resources. If the lawyer does not examine or use the information, notifies the sending lawyer, and returns the documents, there is not much left to fight about. If the lawyer retains and uses the documents, by contrast, the parties and both trial and appellate courts will likely spend time and resources arguing and resolving the factual, ethical, and legal issues presented at the time of the disclosure, at the time the receiving lawyer seeks to use them, and on appeal.

Some committees that adopt an adversarial view simply note that the lawyer’s confidentiality obligation runs to the client, not the opponent’s client. Some also note the lack of any active wrongdoing on the receiving lawyer’s part. Several point to the practical problem of "unringing the bell" once a lawyer has learned confidential information. Requiring a lawyer to purge his or her mind of such information, they point out, is a practical impossibility. Worse, they worry that a requirement that the lawyer not use the information could create a conflict of interest that might keep the lawyer from effectively serving the client.

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 possible 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. Alternatively, the lawyer can file the material under seal with the court and ask the judge to review the material and provide guidance on the proper course of action. There is added uncertainty in the criminal context. None of the ethics opinions we read in preparing this column addresses inadvertent disclosure by prosecutor or defense counsel in the criminal context. There is, however, some case authority. In United States v. Gangi, 1 F. Supp. 2d 256 (S.D.N.Y. 1998), the court held that the prosecution waived privilege by inadvertently handing a defense lawyer and placing into the public record "a highly confidential internal government memorandum" containing the government’s strategy. ( Id. at 258.)

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. As the Maine Ethics Committee pointed out, it is a crime to retain mistakenly delivered property of another.

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