Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts


October 2004

The Worst-Laid Plans
What Do I Do When Privileged Material Reaches Me by Mistake?

by
Terence M. Troyer

Dear Bill,
The guy on the other side is a real know it all who thinks he’s a hot shot. Probably made the Law Review at that cowtown law school. But I have a surprise or two in store for that bag of wind. Here’s the plan.…

Manna from Heaven! Your opponent must have hit the wrong button on his e-mail. He has sent you the memo that outlines his trial strategy instead of sending it to his client. After you read it, you will know his plans and his fears. He may even discuss their settlement objectives. How can you fail to “whip Bobby Lee”1 now? Unless one of those pesky ethical rules snatches the memo out of your hand.

What do the Massachusetts Rules of Professional Conduct say about inadvertent disclosure of privileged information? Not much. The Massachusetts Rules still contain the language that led the American Bar Association’s Association's Standing Committee on Ethics and Professional Responsibility to conclude that “A satisfactory answer to the question posed cannot be drawn from a narrow, literalistic reading of the black letter of the Model Rules.” ABA Formal Opinion 92-368 (1992)

Despite this difficulty, the Standing Committee reached a conclusion. In what has become a widely-cited opinion, the Committee advised that a lawyer who is inadvertently sent confidential materials “should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them.”2 Some state-bar ethics committees have been even more emphatic. Opinion 256 (1995) from the DC Bar Legal Ethics Committee advises that

Where … the receiving lawyer knows of the inadvertence of the disclosure before the documents are examined, Rule 1.15(a) [Safeguarding Property] requires the receiving lawyer to return the documents to the sending lawyer; the receiving lawyer also violates Rule 8.4(c) [dishonesty, fraud, deceit, or misrepresentation] if the lawyer reads and/or uses the material.

See also Oregon Formal Opinion No. 1998-150 (Reading an inadvertently disclosed document or failing to send it back is conduct prejudicial to the administration of justice in violation of Rule 8.4(d)).

But not everyone agrees with the ABA position. In 1999, after examining “a variety of contradictory authority, in Massachusetts and elsewhere,” the Ethics Committee of the Massachusetts Bar Association gave somewhat different advice. The MBA advised that a lawyer should represent a client “zealously within the bounds of the law” (Mass. R. Prof. C. 1.3) and should, therefore, refuse to return the material, even when a claim of privilege is made. The lawyer should retain the material and let the court sort it out. MBA Opinion 99-4.

In 2002, the ABA added paragraph (b) to Model Rule 4.4 (Respect for Rights of Third Persons):

(b) 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.

Because there is a wide variation in the substantive law governing inadvertent disclosure,3 the rule takes no position on “whether the lawyer is required to take additional steps, such as returning the original document, [or] … whether the privileged status of a document has been waived.” Comment [2] But three states (Arizona, Louisiana, and New Jersey) of the eight that have adopted the new ABA rule have added a requirement that the receiving attorney stop reading the document as soon as its nature is (or should be) understood. (The three states have slightly different formulations as to when the receiving lawyer should stop reading.) In addition, Louisiana and New Jersey require that the receiving attorney return the document on demand; Arizona requires only that the sending lawyer be given time to “take protective measures.”

Since Massachusetts has not adopted the new Model Rule, it does not provide us with any guidance. What is a Massachusetts lawyer to do when privileged information inadvertently appears? Let’s consider your options.

1. Do you have to notify the sending lawyer that you have received the letter?

Almost certainly, yes. At least, every decision and ethical opinion that has addressed the question has asserted that the receiving lawyer must (or should) notify the sending lawyer. (The question did not arise in MBA Opinion 99-4 because the inquiring lawyer had already given notice before contacting the ethics committee.) As discussed above, some ethics committees have opined that failure to give notice is a violation of the Rules of Professional Conduct. Even if it is not, failure to give notice exposes the receiving lawyer to the risk of disqualification and sanction by the court.

2. May you read the letter and the memo?

This is more difficult to answer. The cases and ethical opinions that require a lawyer to stop reading analogize the discovery of inadvertently-disclosed material to discovery of a file left unguarded on counsel table or of a briefcase left behind. E.g., ABA Formal Opinion 92-368 (1992) It is clearly wrong to pry into an unguarded file or a forgotten briefcase. See Matter of Ebitz, 8 Mass. Att’y Disc. R. 77 (1992) (Dishonesty in violation of Mass. R. Prof. C. 8.4(c) and conduct prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d); six-month suspension)

Is it equally wrong to read material provided by mistake? A lawyer may learn of the mistake in many ways. The sending attorney may discover the error and request return of the materials before they have been read. Equally, the nature of the documents may be such that it is clear on their face that they are privileged. See State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 655 (Cal. App. 1999) (“claim summary forms, which by design and markings are clearly identifiable as containing confidential attorney-client communications”) In such circumstances, you should refrain from reading the privileged document or should stop reading until the question is resolved. You can either contact the sending attorney to verify that the document was sent intentionally or present the dispute to the court.

Of course, it will often be the case (as it was in MBA Opinion 99-4) that the receiving attorney reads the document before realizing that it is privileged. Equally often perhaps, the realization will take place part way through the reading. An attorney who encounters what seems to be a discussion of wrongdoing – concealment of a witness, say, or the submission of false evidence – will realize that the document was sent to him or her by mistake. Must the attorney stop reading as soon as this realization strikes? There is no clear authority so requiring. There is at least one case, Mira, Inc. v. O'Brien, Mass. Super. Ct. No. 02-5545-H, 11/3/03, 2003 Westlaw 22283384, that may be authority to the contrary.

In Mira, the receiving lawyer appears to have realized that a letter provided to him in discovery was privileged before he read it. The letter was from his opponent’s chief executive officer and addressed to the corporation’s attorney. The receiving attorney “informed Mira's counsel of its inclusion in the document submission and of [his] position that Mira's attorney-client privilege had thereby been waived … [and] moved to compel Mira to produce all its otherwise privileged attorney-client communications.” Judge Gants characterized the receiving attorney’s reading of the document as “quite proper.” And reading the letter produced a substantial benefit for the attorney and his client. Although the court ruled that the privilege had not been waived (applying the “middle” rule; see footnote 3, above), the attorney was permitted to retain the privileged letter, to depose the author about it, and if it appeared “that the inadvertently disclosed letter contained information that established the falsity of the testimony at trial, … to approach the Court at sidebar and ask permission to use the privileged letter to impeach the purported false testimony, much as a prosecutor may use a suppressed confession to cross-examine a defendant who testifies at trial and offers evidence contrary to his confession.”

Contrast Rico v. Mitsubishi Motors Corp., 10 Cal. Rptr. 3d 601 (Cal. App. 2004), review granted, in which the court disqualified an attorney who had read and used privileged material despite his claim that the privileged material showed that the defense experts were lying. “Once the court determines that the writing is absolutely privileged, the inquiry ends. Courts do not make exceptions based on the content of the writing. Unlike with the attorney-client privilege, there is no crime-fraud exception to the attorney work product rule. The absolute attorney work product privilege is just that, absolute.” Id. at 616

In our increasingly-automated world, inadvertent disclosure is only a click away. It seems inevitable that the problem will increase, particularly in large and complex discovery cases. Many lawyers have found it prudent to stipulate in advance to “claw-back” agreements providing that material sent by mistake will be returned. See Adams & Tuohey, “Clawback Agreements Help Protect Privileged Documents,” NY Law J., February 2, 2004. Without such an agreement, the result is much less certain. Prudence suggests, however, that privileged material sent inadvertently should be returned without examination when that is feasible. The contrary view of MBA Opinion 99-4 is certainly a minority view and one that has been disavowed by the ABA. (See Comment [3] to Model Rule 4.4(b), which takes the position that a lawyer may return a document unread without violating the duty of zealous representation.) The majority view supports protection of privilege and treating other lawyers as we would have them treat us.

FOOTNOTES:

1 In the famous “cigar” incident before the Civil War battle of Antietam, Union soldiers found a copy of General Robert E. Lee’s General Order 191, setting out his plans for the upcoming campaign, wrapped around three cigars. The legend is that Union General George B. McClellan said, “If I can’t whip Bobby Lee [with this information], I shall gladly go home.” McClellan did not go home after the battle. Many would say, however, that he fell rather short of decisively “whipping” Lee. (For a summary of the battle, see the National Park Service’s website: www2.cr.nps.gov/abpp/battles/md003.htm)

2 On October 1, 2005, the ABA withdrew these words, to conform the opinion to Model Rule of Professional Conduct 4.4(b), which is discussed below. ABA Formal Opinion 05-437 (2005)

3 The three rules applied are discussed in Judge Young’s scholarly opinion in Amgen Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 290 (D. Mass. 2000):

(1) “Strict accountability,” sometimes called the “traditional rule” – The privilege disappears as soon as the privileged material has been revealed, no matter how the revelation took place. Publication even of stolen materials destroys the privilege.

(2) “Never waived” – The document is still privileged. Only a conscious decision by the holder of a privilege can waive it. No error, however negligent, will suffice.

(3) That delight of litigators everywhere, and the rule applied in Massachusetts, the “middle ground” – Did the person who sent the material take “adequate steps … to ensure” the confidentiality of the material that was nevertheless inadvertently released? In re Reorganization of Electric Mutual Liability Ins. Co., Ltd. (Bermuda), 425 Mass. 419, 423 (1997). This approach may focus less on traditional rules of waiver and more on whether a lawyer “has acted in such a way as to disentitle the client from invoking the privilege. See International Oil, Chem. & Atomic Workers Local 7-517 v. Uno-Ven Co., 1790 F.3d 779 (7th Cir. 1999) (noting that a ‘waiver’ of the privilege is sometimes found ‘in order to punish the person claiming the privilege for a mistake’).” Capra, Mistaken Disclosure of Privileged Information, New York Law Journal, January 11, 2002



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2004. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.