MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-04
The duties of a Maryland Attorney who receives inadvertently produced privileged documents from opposing counsel in discovery.
In your letter of July 23, 1999, you indicated that you represent a client in a matter currently in litigation. You explained that during discovery opposing counsel apparently inadvertently produced many privileged documents. Some of these documents are not designated or specifically marked, but are clearly communications between the opposing counsel and their client. Others are clearly marked in bold and underline at the top: "Personal and Confidential Privileged Attorney/Client Information". You have not described the method by which you received these documents, other than indicating that they were produced in discovery. You have indicated that several of these documents appear to be helpful to your client's case.
You have asked for an opinion as to: (1) what duties, if any, you have to your client, or opposing counsel with respect to the inadvertently disclosed documents; and (2) whether inadvertent or voluntary disclosure to privileged documents constitutes waiver of any applicable attorney-client and attorney work-product privileges. You indicated that you were unable to locate or provide any Maryland case authority on these issues but provided the Committee with the following cases from other jurisdictions: Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.Supp. 404 (D.N.J. 1996); Telephonics Corp. v. U.S., 32 Fed. Cl. 360, 1994 U.S.Claims LEXIS 215 (1994); In re: Southeast Banking Corp. Securities and Loan Loss Reserves Litigation, 212 B.R. 386 (S.D.Fla. 1996); In re Dana Meador, Realtor, 968 S.W.2d 346, 41 Tex. Sup. J. 673 (1998), citing ABA Formal Ethics Opinion 94-382.
ANALYSIS
Given the proliferation of electronic transmission of documents through facsimiles and e-mail, as well as the large number of class-action and other document intensive cases, it is more likely than ever that misdirected correspondence or a clerical error might lead to the inadvertent release of a privileged document. Such a situation creates ethical concerns for the attorney receiving the documents or information for which clear answers are not found in the Promulgated Rules of Professional Conduct.
In fact, the question posed by this inquiry is not clearly answered by Maryland State Bar Ethics Committee opinions, ethics opinions from other jurisdictions or case law, s they vary widely in both rationale and result.
For example, ABA Formal Opinion 92-368 (November 10, 1992) held that upon receipt of apparently privileged material that has been inadvertently transmitted, a lawyer has an ethical obligation to return the privileged material to the sender. This decision was based on the general values served by the principles of confidentiality, the lawyer-client privilege, the law of bailment and missent property (possession of property acquired by mistake is a bailment implied by law imposing duties on the bailee to return the property) and general considerations of common sense, reciprocity, and professional courtesy.
Subsequently, ABA Formal Opinion 94-382 (July 5, 1994) discussed the duty of a lawyer who receives an adverse party's confidential materials from a third party (such as a dishonest former employee) not authorized to provide them. In that situation, the ABA concluded tat the lawyer should either refrain from reviewing the materials or limit the review to the extent required to determine how to proceed appropriately. It also suggested that the receiving lawyer should notify opposing counsel of the receipt of the materials and follow that lawyer's instructions with respect to disposition or refrain from using the materials pending court resolution of the proper disposition of the materials.
Both ABA opinions conclude that no specific Model Rule of Professional Conduct imposes a clearly delineated ethical obligation on the receiving attorney, while implicitly acknowledging this gap in the Model Rules. These ABA opinions reach what we believe to be the right result. However, we disagree in some respects with the path taken by the ABA to reach that result. Instead, we would base our findings not on the law of bailment or some attempt to expand the attorney-client privilege, but rather on the ethical precepts mandated by the higher calling to which we aspire as lawyers as suggested in the Preamble and Scope in the Maryland Code of Professional Responsibility.
First, with respect to the ABA's conclusions regarding the application of the doctrine of attorney-client privilege, this Committee bases its analysis on the ethical principles underlying the Rules of Professional Conduct, and importance of protecting the attorney client privilege in the interest of the public. As described in the Preamble of the Rules "preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they known their communication will be private."
In addition, we have also reached the conclusion that the Maryland Rules of Professional Conduct fail to create any specific ethical obligations to inform your adversary or the Court of your receipt of inadvertently produced privileged documents. However, this Committee believes that the Preamble and Scope of the Maryland Rules of Professional Conduct imply a higher standard of conduct. The Rules are not intended to, and cannot "exhaust the moral and ethical consideration that should inform a lawyer….Rather, the Rules of Professional Conduct. Moreover, "within the framework of these rules many different issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying these Rules." See, Preamble.
Keeping these ethical considerations in mind, it is the view of this Committee that a lawyer practicing in Maryland should seek to achieve a higher level of professionalism than that attained by simply avoiding conduct specifically prohibited by the Maryland Rules of Professional Conduct. Thus, with respect to the question you have posed, the Committee finds that the ethical standard should be guided by, but not limited to, the purpose of the Rules as outlined in the Preamble and Scope, and the provisions in the Rules regarding safekeeping of property, conduct prejudicial to the administration of justice and dishonesty. With these concepts in mind, we undertake our own analysis.
(a) If You Learn Of The Inadvertent Transmission Prior To Receipt Or Examination Of The Material In Question.
An inadvertent transmission of privileged material may be clear from the identification on the box, envelope, or fax. Alternately, the attorney who went the material may realize the error and contact the receiving attorney before the material has even been received. In either case, if the sending attorney indicates that transmission was inadvertent and asks the return of the documents, they should be returned unopened and unreviewed immediately.
In such situations the receiving lawyer may violate Rule 8.4(c), Dishonesty, Fraud, Deceit or Misrepresentation, if, he or she fails to inform the sending attorney of his or her error or opens the package after being instructed not to do so. Reading inadvertently produced material you know is privileged after learning of the error is similar to copying papers from an opposing lawyer's file folders during a break in a deposition. Such conduct has been found to be dishonest. See Lipin v. Bender, 84 N.Y.2d 562, 644 N.E.2d 1300, 1304 (1994).
Rule 1.15(a)&(b), Safekeeping of Property, might also be violated if, contrary to the request of sending attorney, the lawyer subsequently opens and reviews the content of the materials. Rule 1.15(a) and (b) require a lawyer to safeguard the property of another which comes into his possession, to promptly notify the person, and except as otherwise permitted by law, deliver the property to the person entitled to receive it. Materials inadvertently produced in discovery fall under this rule.
This conclusion is not at odds with the lawyer's duty to be a zealous advocate for his or her client's interests since "a lawyer is not bound to press for every advantage that might be realized for a client." See, Comment to Rule 1.3. Obviously, the lawyer's duty to represent his or her client diligently does not imply that an attorney should review or fail to return a document inadvertently disclosed if such actions would be dishonest or unethical.
The District of Columbia, Illinois and Oregon State Bars have also concluded that a lawyer's duty to represent his or her client zealously does not obligate a lawyer to read an unexamined privileged document that had been inadvertently produced, and that a lawyer is ethically required to return the privileged document without first examining it. District of Columbia Bar Opinion No. 256 (May 1995), Oregon State Bar, Formal Opinion No. 1998-150 (April 1998); and Illinois State Bar Association, Ethics Advisory Opinion on Professional Conduct, Opinion No. 98-04 (January 1999).
Further, under such circumstances, it is as if no actual disclosure of privileged material has even occurred: the material was simply transmitted or sent, but not disclosed or reviewed. Therefore, the Committee finds that the receiving attorney is not ethically obligated to inform his/her client that the error occurred and was corrected. Clearly Rule 1.4 requires communications sufficient for the client to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. See, Comment to Rule 1.4. However, here no decision on the part of the client is necessary, since the lawyer's obligations under the Rules are clear. See, ABA Informal Ethics Opinion 86-1518 (lawyer was not required to inform his client of his ethical obligation to inform opposing counsel and correct the error when an agreed upon provision was inadvertently omitted from the final draft of an agreement).
(b) If You Learn Of The Inadvertent Transmission Only After Your Review Or Examination Of The Material In Question.
In other situations, such as the one you seem to have described in your inquiry, the privileged nature of documents sent to you may be evident only after your review of them. There may also be some question, if they were produced in discovery as you suggested, about whether the disclosure was inadvertent or intentional. If either the content of the document or the circumstances of its production lead you to believe that the disclosure of the privileged material was inadvertent, you must inform opposing counsel of the inadvertent disclosure.
Once you have reviewed the material, you also have an obligation under Maryland Rule of Professional Conduct 1.4, Communication, to inform your client promptly that you have reviewed privileged documents received from another party, and that you have certain obligations under the Rules of Professional Conduct. This will permit your client to make informed decisions regarding your representation of him/her/it in the litigation.
You then have two alternatives. First, as described above, the Committee believes that you may be required to return the documents without further reviewing them, using them or disclosing the information, when asked to do so by opposing counsel or risk violation of Rules 1.15(a), Safekeeping of Property, and 8.4(c), Dishonesty, Fraud, Deceit or Misrepresentation.
However, the Committee is also aware of the growing sentiment in the Federal Courts (see cases cited below) and ethics decisions of other state bar associations which suggest that careless or negligent disclosure of privileged documents, may, under certain circum-stances it may be unreasonable or unrealistic to expect a receiving lawyer who has already reviewed privileged documents to "un-ring the bell" and ignore information that has been received and reviewed in good faith.
This conclusion is also supported by the draft Restatement of the Law Governing Lawyers. See Comment "m" to §112, and "h" to §129, Proposed Final Draft No. 1 (March 29, 1996) and Comment "e" to §162, Tentative Draft No. 8 (March 21, 1997). The Restatement concludes that a lawyer who comes into possession of confidential information of a non-client, including inadvertent disclosures, may use the information under certain circumstances.
Therefore, if you have already reviewed the documents, your second alternative would be to consult the Courts regarding the permissible use of the inadvertently disclosed privileged material before using or further disclosing the information to anyone. For example, once you realize the information you're reviewing might be privileged, you might seal the documents in an envelope without further reviewing them, any apply to the Court, in a sealed motion, for a ruling as to whether or how the disclosed material might be used.
(2) The waiver of any applicable privileges is not an issue appropriate for resolution by this Committee.
Pursuant to Ethics Committee Guidelines, we decline to issue an opinion as to what effect such inadvertent disclosure might have on further discovery or use of the privileged documents, and whether the inadvertent disclosure operates as a waiver of any applicable privileges. This issue is one of law, which this Committee believes should be left to the courts. Therefore, the Committee will not address it. Note however, that although you were unable to locate any Maryland cases, which address this issue, Federal Courts within the 4th Circuit, including the U.S. District Court for the District of Maryland, have addressed this issue and the procedures that should be followed. See, McCafferty's, Inc. v. Bank of Glen Burnie, 179 F.R.D. 163 (D.Md. 1998); F.C. Cycles Int'l. Inc. v. Fila Sport, S.p.A., 184 F.R.D. 64 (D.Md. 1998); FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D.Va. 1991); In re Grand Jury Proceedings, 727 F2d 1352 (4th Cir. 1984).