Duties associated with the inadvertent receipt and production of information.

When talking professional responsibility, we sometimes focus so intently on the Rules of Professional Conduct that we overlook duties that arise under other law.  Prone to such laser-like focus is the discussion of the professional duties associated with the inadvertent production and receipt of privileged information.

Oops

I’ve previously mentioned Presnell on Privileges.  It’s a fantastic resource to stay up to date on all matters related to the attorney-client privilege.  Last week, a loyal reader forwarded me a post from the blog: EEOC Lawyer Reads GW’s Privileged Emails – Violates FRCP 26(b)(5)(B). What about Ethics Rules and Sanctions?

Let the discussion begin.

With respect to legal ethics, V.R.Pr.C. 4.4(b) governs.

“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.”

Three observations:

  • I’d caution against debating with yourself as to whether you received a “document.”  That strikes me as too fine a distinction when dealing with information that you know or should know was not meant for you. Indeed, Comment [2] indicates that “ ‘document’ includes email or other electronic modes of transmission subject to being read or put into readable form.”
  • Nothing in the rule suggests that the duty to notify the sender turns on the recipient’s assessment of whether the document is privileged. Rather, “receipt” triggers the duty to notify.
  • The rule applies no matter the sender.  That is, it’s not limited to “opposing counsel.”

As I’ve often mentioned, notification is the only duty that arises under Vermont’s rule.  Per Comment [2] “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.”  Comment [3] goes on to indicate that even when not required by law to do so, the decision to return or destroy the document unread is a matter of professional judgment left to the lawyer.

But that doesn’t end the discussion.  There are duties that spring from other law, most notably the rules of civil procedure.

The link at the beginning of this post refers to the duties that arise under the federal rules in response to an assertion that a privileged document was inadvertently produced.  There’s also Rule 26(b)(6)(B) of the Vermont Rules of Civil Procedure. Under the rule, a party who is notified that privileged information was produced “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.”

Is a violation of the civil rule an ethics violation?

Maybe.

V.R.Pr.C. 3.4(c) makes it a violation to “knowingly disobey an obligation under the rules of a tribunal.”  Further, when discussing privileged information, V.R.Pr.C. 4.4(b) prohibits “methods of obtaining evidence that violate the legal rights of [a] person.”  The Comment adds that while “it is impractical to catalogue all such rights . . . they include . . . unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” Finally, even if not an ethics violation, I’ve heard that discovery sanctions aren’t fun.

In conclusion, when discussing inadvertent production, don’t limit the discussion to the Rules of Professional Conduct.