|Oregon State Bar Bulletin JULY 2006|
The duty required of lawyers
receiving inadvertantly sent documents
By Chris Mullmann
Sometimes reviewing the history of a new rule of professional conduct makes the substance of the new rule easier to recall when needed. Thus, we look back 14 years to the Oregon Supreme Court’s decision in Goldsborough v Eagle Crest Partners, LTD.I, 314 Or 336, 838 P2d 1069 (1992).
In response to a request for production of documents, defendant’s lawyer voluntarily gave plaintiff a letter written by defendant’s personnel director to defendant’s lawyer concerning plaintiff’s employment which was the basis of the lawsuit. At trial, plaintiff offered the letter in evidence. Defendant’s lawyer objected, arguing for the first time that the letter was privileged and there had been no intent to waive the privilege when the letter was delivered.
In deciding the privilege question the court concluded that an inference may be drawn that a lawyer who voluntarily turns over privileged material during discovery acts within the scope of the lawyer’s authority from the client and with the client’s consent. The court noted that factors to be considered by the court include whether the disclosure was inadvertent, whether any effort was made to remedy any error promptly and whether preservation of the privilege will occasion unfairness to the opponent. The court emphasized that the defendant offered no evidence, and did not argue, that the disclosure was inadvertent, mistaken or not authorized by the client. The court affirmed the Court of Appeals finding that there was sufficient evidence to support the court’s ruling that the defendant waived the privilege.
While Goldsborough was a privilege case and not an ethics case, decisions like it around the country prompted the ABA to issues its Formal Op. No. 92-358, examining the ethics issue involved in inadvertent disclosure cases. Without citing any direct authority, the ABA opinion held that a lawyer who received inadvertently-sent privileged material must immediately notify the sender and, on the sender’s request, return the document, unread if possible. The ABA opinion was not without critics, and a few jurisdictions issued contrary opinions. Oregon, however, adhered to the majority approach in OSB Formal Ethics Opinion No. 1998-150. The opinion recognizes that questions of admissibility do not control the analysis of the ethical issues because privilege may sometimes be waived by disclosure. Instead, Opinion No. 1998-150 framed the ethical issues as follows:
Lawyer A inadvertently includes a privileged document in a set of documents provided to Lawyer B in response to a discovery request. Lawyer A discovers the mistake, calls Lawyer B, and asks Lawyer B to return the privileged document without examining it.
Must Lawyer B return the document?
1. Must Lawyer B return the document if Lawyer B has already reviewed the document before being informed of the inadvertent disclosure?
2. If Lawyer A inadvertently sends a privileged document to Lawyer B outside the litigation context, must Lawyer B return the privileged document?
At the time this opinion was issued there was no rule in the Oregon Code of Professional Responsibility dealing with the issue of inadvertent disclosure of confidential information. Instead, the opinion relied upon DR 1-102(A) (4) making it professional misconduct for a lawyer to "(e)ngage in conduct that is prejudicial to the administration of justice." According to the opinion, reading an inadvertently disclosed document, or failing to send it back, is a type of conduct, and an inadvertent disclosure of privileged information in the pretrial discovery process is directly related to the administration of justice. (Emphasis added and citations omitted.)
In answering the first two questions quoted above , the opinion concluded that if a request for return of the document was made before it was examined by opposing counsel, then the receiving lawyer was ethically required to return the document to opposing counsel before it was examined. If the receiving lawyer examined the document before being informed of the inadvertent disclosure, the receiving lawyer was still ethically required to return the document to opposing counsel to avoid a violation of DR 1-102(A)( 4).
Formal Opinion 1998-150 also provided some practical advice for lawyers receiving documents during discovery. The receiving lawyer should be able to assume that documents provided in response to a request for production can be examined and analyzed. However, if the receiving lawyer "knows or should reasonably know" the document is privileged from its context and that disclosure was inadvertent or unintended then the lawyer has an ethical duty to seek instruction regarding the document and must return it upon request. Moreover, if the document is beneficial to the receiving lawyer’s client, the lawyer may have a duty to seek court permission to use the information.
In situations outside of a litigation setting (where DR 1-102(A) (4) would not apply) the opinion concluded that a receiving lawyer should return a document if the document is marked or appears to be privileged. This was based upon the conclusion that return of the document did not impact a lawyer’s duty of zealous representation and met the fundamentals underlying the disciplinary rules of "professionalism."
With the adoption of the Oregon Rules of Professional Conduct in 2005, we have a rule that specifically address the issue. Oregon RPC 4.4 (b) provides:
(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.
While the new rule makes it clear that the receiving lawyer must notify the sender of receipt of the document, it does not suggest that the receiving lawyer must return the document to the sender. Notably, the rule is not limited to privileged documents, but applies to any document inadvertently sent. Although not part of the Oregon RPC as adopted by our high court, Comment (2) to ABA Model Rule 4.4 sheds some light on what the drafters of the Model Rules felt was the proper course of action in such a situation:
If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether 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. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.
Disciplinary rules set the minimum level of conduct for lawyers. Conduct falling below that minimum standard will subject the lawyer to discipline. Oregon RPC 4.4 (b) is a subtle but meaningful change in the duty required of lawyers receiving inadvertently sent documents. It places a burden of notification on the receiving lawyer, but leaves to the sender the burden of taking steps to rectify the error. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return an inadvertently disclosed document is a matter of professional judgment ordinarily reserved to the lawyer. However, as noted in ABA Op 92-368 and cited in Oregon Formal Opinion 1998-150, "The credibility and professionalism inherent in doing the right thing can, in some significant ways, enhance the strength of one’s case, one’s standing with the other party and opposing counsel and one’s stature before the court."
OSB Formal Ethics Op. No. 1998-150 has been replaced by Op. No. 2005-150, which analyzes the lawyer’s duties under Oregon RPC 4.4(b). The ABA has also withdrawn Op 92-368.
© 2006 Chris Mullmann
ABOUT THE AUTHOR
Chris Mullmann is assistant general counsel and manager of the Client Assistance Office for the Oregon State Bar. He can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 392, or by e-mail at firstname.lastname@example.org.