LEGAL ETHICS OPINION 1702 INADVERTENT RECEIPT OF CONFIDENTIAL
INFORMATION; ZEALOUS REPRESENTATION
You have presented a hypothetical situation in which Attorney A
represents B in a suit against Y, represented by Attorney X.
Attorney X sends Y confidential information which makes reference
to confidences Y has revealed to Attorney X and also outlines
trial strategy and evaluation constituting work product of
Attorney X. This information was sent via facsimile transmission
to Y. Through an error in Attorney X's office, the information
was also sent via facsimile transmission to Attorney A. Attorney
A's office is able to recognize from the first paragraph of the
transmission that the information has been sent in error and that
it contains confidential information and work product of Attorney
X.
Under the facts you have presented, you have asked the committee
to opine as to whether Attorney A's duty of zealous
representation of his client requires that he read and use the
information sent to him in error by opposing counsel's office.
Also, even if Attorney A is not required to use the information,
may he do so? Does it matter whether the cover sheet of the
facsimile transmission contains a clause warning that the
information may be confidential and is to be read only by the
addressee?
The factual situation presented is not an uncommon occurrence in
an age of instant high-tech electronic communication of
information through facsimile machines and e-mail. The lawyer
who receives inadvertently transmitted confidential information
seemingly has conflicting ethical duties.
[T]here is a theoretical conflict between ethical rules
that require fairness to the opposing party and counsel
and prohibit methods for obtaining evidence that
violates another's legal rights, on the one hand, and
the duty of competent and diligent (zealous?)
representation of one's client, on the other.
What about inadvertently disclosed documents or information?, 60
Def. Counsel J. 613 (1993); seeInadvertent Disclosure in the Age
of Fax Machines: Is the Cat really out of the Bag?, 46 Baylor L.
Rev. 385 (1994). The ethical conflict is not answered
dispositively in the Disciplinary Rules or the ABA Model Rules.
Id. No Disciplinary Rule explicitly mandates a standard of
conduct encompassing the ethical obligations of a lawyer who
receives an inadvertent transmission of confidential/privileged
documents from an opposing lawyer, or a deliberate transmission
from an unauthorized third party.
DR 7-101 requires zealous representation of a client. However,
DR 7-101(B)(2) tempers the character of zealous representation by
permitting a lawyer to withdraw if the client insists on the
lawyer participating in conduct or pursuing an objective which is
"repugnant or imprudent." DR 7- 102(A)(8) also tempers the
character of zealous representation by prohibiting a lawyer from
knowingly engaging in illegal conduct or conduct contrary to a
Disciplinary Rule. DR 1- 102(A)(3)and (4) prohibit a lawyer from
committing a deliberately wrongful act or engaging in conduct
involving dishonesty, fraud or deceit that reflects adversely on
fitness to practice law.
The absence of an explicit Disciplinary Rule does not create an
ethical vacuum. EC 9-2 admonishes the following:
[W]hen explicit ethical guidance does not exist, a
lawyer should determine his conduct by acting in a
manner that promotes public confidence in the
integrity and efficiency of the legal system and the
legal profession.
Similar aspirational guidance is stated in EC 9-6:
Every lawyer owes a solemn duty to uphold the integrity
and honor of his profession; . . . to conduct himself
so as to reflect credit on the legal profession and to
inspire the confidence, respect, and trust of his
clients and of the public; and to strive to avoid not
only professional impropriety but also the appearance
of impropriety.
A deliberate interception or procurement of confidential
information is not ethically permissible, of course. A lawyer
may not, for example, secretly tape record his telephone
conversation with the adverse party (LEO No. 1635), or counsel
his client to do so (Gunter v. Virginia State Bar, 238 Va. 617
(1989)). Nor may a lawyer procure information and documents from
an opposing lawyer's former employee or rifle a file that an
opposing lawyer inadvertently left in the lawyer's office
following depositions. LEO No. 651. Each of those examples is
controlled by DR 1-102(A)(3) and (4) and DR 7-102(A)(7) and (8)
notwithstanding the duty of zealous representation contained in
DR 7-101(A).
In LEO No. 1583 a lawyer wrote to a judge about whether the
judge's markings on the reverse side of an arrest warrant for a
third DUI constituted a conviction absent the judge's signature
and a recorded finding of guilt. The judge replied to the lawyer
and inadvertently enclosed the original of the arrest warrant.
The lawyer inquired whether he was permitted to use the arrest
warrant or give it to his client, or was obligated to return it
to the court. The committee relied on DR 7-102(A)(3), (7), and
(8) and DR 1- 102(A)(3) and (4), and referred to Code of Virginia
18.2-111 and 17-44 and -45, in concluding that the lawyer had
an ethical duty to return the arrest warrant and not to use it.
Ethics panels in other jurisdictions have expressed divergent
opinions regarding the use or return of inadvertently transmitted
confidential documents. District of Columbia Legal Ethics
Opinion 256 (1995) advised that a lawyer who receives
inadvertently sent confidential documents from opposing counsel
may use them if he read them before discovering they were
inadvertently sent to him. However, if the receiving lawyer knew
the documents were inadvertently sent before reading them, then
he was obligated to return them and not use them.
Maine Ethics Opinion 146 (1984) advised that a lawyer who
received confidential documents inadvertently included in a
discovery response was permitted to use them as permitted by the
rules of procedure and evidence. Kentucky Ethics Opinion E-374
(1995) advised that a lawyer who uses inadvertently sent
privileged documents will not be disciplined for using them.
Most ethics panels agree on one point: a lawyer who receives
inadvertently transmitted confidential documents from the
opposing lawyer has a duty to notify the opposing lawyer
promptly. Florida Ethics Opinion 93-3 (1994); Maine Ethics
Opinion 146 (1994); Ohio Ethics Opinion 93-11 (1993).
The ABA Committee on Ethics and Professional Responsibility
addressed the matter in Formal Opinion 92-368 (1992). It aptly
observed the following:
A satisfactory answer to the question posed [i.e., the
ethical duties of the lawyer receiving inadvertently
sent confidential or privileged documents from the
opposing lawyer] cannot be drawn from a narrow,
literalistic reading of the black letter of the Model
Rules. . .
Thus, the ABA Committee looked at the precepts underlying the
Model Rules for guidance. The ABA Committee also examined the
ethical mandate of confidentiality, cases rejecting a waiver of
attorney-client privilege from mere inadvertence in delivery of
documents, and finally, the law of bailments. The ABA Committee
summarized its opinion, as follows:
A lawyer who receives materials that on their face
appear to be subject to the attorney-client privilege
or otherwise confidential, under circumstances where it
is clear they were not intended for the receiving
lawyer, should refrain from examining the materials,
notify the sending lawyer and abide the instructions of
the lawyer who sent them.
A number of cases have addressed inadvertent waiver of
attorney-client privilege and work product privilege based on
evidentiary rules. See generally Bank Brussels Lambert v. Credit
Lyonnais (Suisse) S.A., 160 F.R.D. 437 (S.D.N.Y. 1995); ABA/BNA
Lawyers' Manual on Professional Conduct 55:417 (1996).
Resolution Trust Corp. v. First of America Bank, 868 F. Supp.
217, 220 (W.D. Mich. 1994), is one of few inadvertent disclosure
cases that includes ethics in its analysis.
[C]ommon sense and a high sensitivity toward ethics and
the importance of attorney-client confidentiality and
privilege should have immediately caused the
plaintiff's attorneys to notify defendant's counsel of
his office's mistake. The lawyers who received the
document must have known by the markings and the
contents of the document that a clerk or secretary in
the defendant's lawyer's office mistakenly included the
privileged letter within the documents intended for the
plaintiff's lawyers. . . . While lawyers have an
obligation to vigorously advocate the positions of
their clients, this does not include the obligation to
take advantage of a clerical mistake in opposing
counsel's office where something so important as the
attorney-client privilege is involved.
(footnote omitted)(emphasis supplied).
The italicized language is a variation of the theme sounded by
the ABA in 1908 in its adoption of canon 15:
[T]he office of attorney does not permit, much less
does it demand of him for any client, violation of law
or any manner of fraud or chicane. . . .
G. Warvelle, Essays in Legal Ethics at 222 (2nd ed. 1920).
The theme of professionalism in the practice of law,
notwithstanding the absence of an applicable black letter
Disciplinary Rule, is articulated in EC 9-2 and EC 9-6. Legal
ethics, like ethics generally, is fraught with gray areas that do
not fit under an explicitly applicable Disciplinary Rule. In
that circumstance, the ethical polestar is conduct that reflects
credit on and inspires public confidence in and respect for the
integrity of the legal profession.
It is the committee's opinion that the conclusion reached in ABA
Formal Opinion 92-368 correctly states the ethical duties of a
lawyer who receives inadvertently transmitted confidential
documents from opposing counsel or opposing counsel's client.
Those ethical duties foster the bedrock ethical principle of
safeguarding client confidences and secrets. See LEO No. 1643.
Just as a lawyer may not take and use documents from opposing
counsel's briefcase inadvertently left behind (LEO No. 651), it
is not ethically permissible for a lawyer to keep and use
documents inadvertently transmitted to him by opposing counsel.
The situations are factually different, yet the sense of the
Committee is that no difference exists in principle.
Safeguarding client confidences and secrets is a categorical
imperative that should not hinge on someone pushing the wrong
number on a facsimile machine, or putting documents in the wrong
envelope.
The committee is mindful of cases adopting a doctrinaire rule
that even an inadvertent transmission of confidential documents
causes a loss of attorney-client privilege and permits the
receiving lawyer to use the documents. The rules of evidence do
not, however, displace ethical standards governing lawyers. See
Gunter v. Virginia State Bar, 238 Va. 617, 621 (1989), rejecting
the argument "if it's legal, it's ethical," as far too
restrictive under the Code of Professional Responsibility:
The lowest common denominator, binding lawyers and
laymen alike, is the statute and common law. A higher
standard is imposed on lawyers by the Code of
Professional Responsibility, . . . . [W]e emphasize
that more is required of lawyers than mere compliance
with the minimum requirements of that standard. The
traditions of professionalism at the bar embody a level
of fairness, candor, and courtesy higher than the
minimum requirements of the Code of Professional
Responsibility.
In some cases it may not be apparent without reading the document
received that it is confidential or was transmitted
inadvertently. Boilerplate notices on fax cover pages do not
necessarily put the receiving lawyer on notice of an inadvertent
transmission to him. Hence, a rule prohibiting the receiving
lawyer from reading an inadvertently transmitted document would
violate reality. Even so, once the receiving lawyer discovers
that he has a confidential document inadvertently transmitted by
opposing counsel or opposing counsel's client, he has an ethical
duty to notify opposing counsel, to honor opposing counsel's
instructions about disposition of the document, and not to use
the document in contravention of opposing counsel's instructions.
In the facts you present, the committee believes that Lawyer A's
obligation to zealously represent B does not require Lawyer A to
read the misdirected confidential communication, since the
mistake was immediately recognized by a member of Lawyer A's
staff. Further, having immediately recognized that the fax was
both confidential and misdirected, the committee opines that
Lawyer A may not read the misdirected communication and must
immediately notify the opposing counsel, Attorney X, of the
mistaken receipt of the facsimile transmission, and abide by
whatever instructions Attorney X may give in regard to the
disposition of the document. The committee is of the opinion
that Attorney A may not use the information contained in the
misdirected fax to the benefit of B.
Although not presented by your request for an advisory opinion,
the committee believes that the opinion expressed relative to
inadvertent transmission of privileged/confidential documents
warrants reconsideration of an earlier opinion relative to
deliberate but unauthorized transmission by an unknown third
party. LEO #1076 concluded that, where an unknown third party
sends a lawyer selected items from the opposing lawyer's file,
the Code of Professional Responsibility does not obligate the
lawyer to return the items or prohibit their use for the client's
benefit. The committee suggested, however, that out of
professional courtesy the receiving lawyer should inform the
opposing lawyer of the receipt of the items, which one writer has
labeled "The Southern Gentlemen" rule. 60 Defense Counsel J. at
614.
The Maryland Bar Association opined that a lawyer who receives
copies of an opposing party's documents from an unidentified
source is not obligated to make disclosure to the court or the
opposing lawyer. However, if the lawyer receives original
documents, not just copies, he is duty- bound to return them.
Maryland Bar Assoc. Op. 89-53 (1989). In Michigan a lawyer may
keep and use unknown third party-provided documents from the
opposing lawyer's file if neither the receiving lawyer nor his
client in any way procured the documents. Michigan Bar Assoc.
Op. CI-970 (1983).
ABA Formal Opinion 94-382 (1994) addressed the ethical obligation
of the lawyer who receives an opposing lawyer's
confidential/privileged documents from an unidentified source.
Unlike ABA Formal Opinion 92-368, where the opposing lawyer or
opposing party did not intend to transmit the
confidential/privileged documents to the receiving lawyer, the
unknown third party sender intended for the receiving lawyer to
have and make use of the transmitted confidential/privileged
documents.
Even so, the ABA Committee declined to adopt a rule that made it
ethically permissible for a lawyer to have unlimited use of the
opposing lawyer's confidential/privileged documents that were
received from an unknown third party. Adopting an unlimited use
rule, the ABA Committee observed, would subject the protection of
client confidences and secrets to the whim or mischief of
unauthorized efforts of others.
The ABA Committee also declined to adopt an absolute rule
prohibiting a receiving lawyer from reviewing or using such
confidential/privileged documents under all circumstances. It
was noted, for example, that the receiving lawyer may have a
legitimate claim that the documents had been wrongfully withheld
from discovery responses. Or the receiving lawyer may seek to
establish that the documents were received from someone acting
under the authority of a whistle blower statute. See e.g.,
Whistleblower Protection Act, 5 U.S.C. 1201, et seq. (1988).
ABA Formal Opinion 94-382 sought to strike a balance of the
competing interests, as follows:
[T]he Standing Committee is of the opinion that a
lawyer receiving such privileged or confidential
materials satisfies her professional responsibilities
by (a) refraining from reviewing materials which are
probably privileged or confidential, any further than
is necessary to determine how appropriately to proceed,
(b) notifying the adverse party or the party's lawyer
that the receiving lawyer possesses such documents, (c)
following the instructions of the adverse party's
lawyer, or (d) in the case of a dispute, refraining
from using the materials until a definitive resolution
of the proper disposition of the materials is obtained
from a court.
(footnote omitted).
It is fair to say that deception and conversion, and possibly
even larceny, play a role in an unidentified third party's
unauthorized raiding of the file of the opposing lawyer or of his
client in order to obtain and then send privileged/confidential
documents to the other lawyer. DR 1-102(3) and (4) would not
permit the other lawyer to commission someone to procure such
documents. They are tainted. Yet as the ABA Committee observed,
there may be circumstances where the character of the documents
and the justification for their use transcend the tainted
acquisition.
The committee is of the opinion that ABA Formal Opinion 94-382
fairly balances the competing interests and correctly states the
ethical responsibility of a lawyer who receives from an
unidentified source confidential/privileged documents taken
without authorization from the file of the opposing lawyer or of
the opposing party. LEO #1076 is therefore overruled.
The duty of competent, zealous representation of a client
notwithstanding, the Committee believes that the guidelines
articulated in EC 9-2 and EC 9-6, and applied in Gunter,
circumscribe a lawyer's representation of a client. A "use
whatever you have, no matter how you got it" rule may reflect the
rules of the marketplace, yet Gunter admonishes that "Higher
standards should prevail in the practice of law." Id. at 621.
The practice of law is a profession and is the only one not
regulated by the Virginia Department of Professional and
Occupational Regulation. (See Code of Va. 54.1-100, et seq.)
The profession's unique status entails a heightened adherence to
ethical standards that engender respect for and confidence in the
integrity of the profession.
[DRs 1-102(A)(3) and (4), 7-101 (A) and (B)(2), 7-102(A) (3), (7)
and (8); ECs 9-2, 9-6; LEOs 651,1076, 1583, 1635, 1643; DC Ethics
Op. 256; Maine Ethics Op. 146; Kentucky Ethics Op. E-374; Florida
Ethics Op. 93-3; Ohio Ethics Op. 93-11; ABA Formal Ops. 92-368,
92-382; Maryland Ethics Op. 89-53; Michigan Op. CI-970]
Committee Opinion
November 24, 1997
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