Inadvertent Disclosure of Confidential Information
By Jeffrey P. Lewis
What should a lawyer do when he or she inadvertently receives a document from opposing counsel that on its face appears to be subject to the attorney-client privilege or otherwise confidential? Moreover, what duty does the receiving lawyer owe to his or her own client to exploit this circumstance? Ethics opinions have addressed this issue, but they gave not always been consistent. Unfortunately, no Pennsylvania appellate court — state or federal — has addressed the issue in any reported decision.
Recently, the ABA Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 05-437, Inadvertent Disclosure of Confidential Materials: Withdrawal of Formal Opinion 92-368 (Nov. 10, 1992). In its 1992 opinion, it had stated that where the receiving lawyers had received materials under these circumstances, they must refrain from examining the materials, immediately inform the sending lawyer of the inadvertent transmission and abide by the instructions of the lawyer who sent them. But in February 2002, the ABA Model Rules of Professional Conduct were amended to add (among other changes) subsection (b) under Rule 4.4 (Respect for Rights of Third Parties), 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.” This rule, however, does not state, as does the ABA 1992 opinion, that the receiving lawyer must abide by the instructions of the sending lawyer. Moreover, it does not prohibit the receiving lawyer from reading or otherwise examining the materials. This change in the ABA Model Rules became relevant to Pennsylvania lawyers when the Supreme Court of Pennsylvania adopted this language as Rule 4.4(b) of its Rules of Professional Conduct, taking effect on Jan. 1, 2005.
In the 2005 opinion, the ABA committee withdrew its 1992 opinion in light of the addition of Rule 4.4(b) to the ABA Model Rules. It noted language found in the rule’s comment 2 (which the Supreme Court also adopted, along with all of the other comments) that “[w]hether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived.” Under these circumstances Comment 3 allows the receiving lawyer to choose to return a document unread subject to the considerations contained in Rules 1.2 (“Scope of Representation and Allocation of Authority Between Client and Lawyer”) and 1.4 (“Communication”), even when not required by law.
Some lower courts, including federal courts that apply state privilege law, have consistently addressed inadvertent disclosure in the same way. They apply a five-pronged test to determine whether sending counsel has waived the attorney-client privilege with respect to the document sent inadvertently. See, e.g., Murray v. Gemplus International, S.A., 217 F.R.D. 262; 2003 U.S. Dist. LEXIS 16169; 56 Fed. R. Serv. 3d (Callaghan) 856. Although, as a general rule, only the client can waive the attorney-client privilege, the lawyer as agent for the client can waive the privilege if he or she has acted with sufficient negligence in failing to protect the privileged documents from disclosure.
From a malpractice standpoint, both the sending and receiving lawyers face exposure, the sending lawyer for the possible compromise of a client’s case and the receiving lawyer for failure to ethically exploit the disclosure in the role of zealous advocate. The sending lawyer must be concerned with “the precautions taken by the disclosing party to prevent accidental disclosure” and “the time taken to rectify the disclosure.” That is, once the receiving party has discharged the duty to give prompt notice of the disclosure, the sending party must act promptly to seek judicial intervention to prevent any further erosion from the disclosure. But from the receiving party’s standpoint, this situation raises a very intriguing point — one of the other elements considered by the court concerns “the extent of the disclosure.” Therefore, this supports the argument that once the receiving lawyer realizes what has been received, he or she should read all of it immediately so as to maximize the disclosure, thus increasing the likelihood that the court will find waiver.
The forgoing suggests the following moral to this story, at least in litigation: A nonwaiver agreement would protect against inadvertent disclosures. This constitutes a contractual protective order that allows the parties to define what circumstances will constitute a waiver. All parties would have a motivation to agree, because no one at the beginning of a lawsuit will know when or if inadvertent disclosure will occur — and whose ox will be gored as a result.
Jeffrey P. Lewis is a shareholder in the West Chester office of the Philadelphia-based law firm of McKissock & Hoffman P.C., with offices also in Harrisburg, Doylestown and Westmont, N.J. He serves on the PBA Professional Liability Committee and is a PBA Zone 9 delegate.