Return to Sender
By Deanna S. Brocker
Suppose you purchase a 50 cent pack of gum with a five dollar bill and the store clerk inadvertently gives you change for a twenty. Do you return the excess or pocket the change and buy a Happy Meal on the way home? In a perfect world, we would forego the Happy Meal, return the change, and take pride in knowing our parents taught us well.
Should the result be any different if you receive, instead of money, an opposing party's confidential document? The ABA Standing Committee on Ethics and Professional Responsibility says no, but several state bar ethics committees disagree. On two separate occasions, the ABA Committee opined that an attorney who receives privileged or confidential materials, either inadvertently from opposing counsel or on an unauthorized basis from a third party, should 1) refrain from reviewing such materials, 2) notify the opposing counsel of their receipt, and 3) follow opposing counsel's instructions as to the disposition of such materials. Under no circumstances, should the receiving attorney use the materials to the client's advantage. ABA Formal Opinions 92-368 and 94-382. In analyzing this issue, the ABA Committee admits that the Model Rules offer no explicit guidance. Instead, the Committee relies upon principles of client confidentiality, professionalism, and case law on bailment and missent property to support its opinions.
At least three state bar ethics committees permit an attorney to use material from an opposing party's files under certain circumstances. Maryland allows the use of an opposing party's confidential documents received from an unidentified source and imposes no obligation on an attorney to reveal the matter to the court or the opposing party. If the lawyer receives original documents, the lawyer may copy them for her own use, but must attempt to return the originals to the rightful owner. Maryland Bar Ass'n, Op. 89-53 (1989). In Virginia, an attorney may retain, read, and make use of an adversary's confidential materials sent by an unknown party; however, the attorney is encouraged to notify opposing counsel as a matter of "professional courtesy." Virginia Bar Ass'n, Op. 1076 (1988). Michigan gives even broader latitude, allowing an attorney to use at trial any document coming into his possession (whatever the source), "provided it is admissible evidence and neither the attorney nor the client in any way procured the removal of the document from the possession of the opposing party." Michigan Bar Ass'n, Op. CI-970 (1983). Since the North Carolina State Bar Ethics Committee has yet to opine on this issue, it appears to be a matter of first impression.
The attorney who is lucky enough to receive an opposing party's confidential information is caught between competing ethical obligations: the duty to act as a zealous advocate on behalf of his client and the "golden rule" of professionalism and courtesy. The former obligation may be found in Rule 7.1 of our Rules of Professional Conduct. The latter is not so much an ethical mandate as an aspiration, embodied in Rule 7.1 1 and alluded to elsewhere in the Rules - that is, "treat your fellow attorney as you would have him treat you, for tomorrow the shoe may be on the other foot."
In the case where an attorney receives notice of the error prior to reviewing the materials or is given an opportunity to decline acceptance of an unauthorized transmission of confidential documents, the choice is clear. Ethical considerations of professionalism and courtesy dictate the immediate return of the materials to opposing counsel or the rightful owner. There was no revelation of client confidences, so return of the materials preserves the status quo. Moreover, absent explicit or implied authorization from opposing counsel to review the contents, there is no entitlement to them, just as an attorney would not be entitled to peruse documents in an opposing counsel's unlocked briefcase while on break from a deposition. One recent New York case 2, which may be limited to its facts, held that a lawyer who read privileged 3 documents, despite opposing counsel's prior request not to open the inadvertently sent discovery materials, acted unethically where he knew of the mistake prior to reviewing the documents.
A more difficult situation, and the one more likely to arise, occurs when the receiving attorney discovers the error or unauthorized transmittal after reading the contents, and the proverbial cat is out of the bag. On the one hand, if the attorney refrains from revealing the information to the client or using it to the client's benefit, the attorney is arguably breaching duties of communication (Rule 6(b)) 4 and zealous representation (Rule 7.1). This is a classic conflict of interest because the attorney's professional obligations impede her ability to act in the client's best interest. Rule 5.1 On the other hand, should we cast aside notions of professionalism and allow attorney oversight or third-party sabotage to undermine the principles of client confidentiality? As the Preamble to our Rules of Professional Conduct suggests, we should be "guided by personal conscience and the approbation of professional peers."
Pending a definitive answer from the courts or the Ethics Committee, this author proposes the following: absent a specific prohibition under our Rules of Professional Conduct, the receiving attorney may use the confidential information to the client's benefit. However, the attorney, out of professional courtesy, should give prior notice to opposing counsel. 5 Although it may be too little, too late, opposing counsel will have an opportunity to safeguard client confidences by seeking a protective order or other injunctive relief. It looks like we may get our Happy Meal after all.
1. An attorney does not violate the duty of zealous representation "by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process . . . ." Rule 7.1(a)(1).
2. American Express v. Accu-Weather Inc. , No. 91 Civ. 6485 (D.C. S.N.Y. 6/25/96).
3. The attorney-client privilege is a rule of evidence addressing whether an attorney can be compelled to disclose otherwise protected material, whereas confidentiality is a broader concept designed to govern an attorney's voluntary conduct. ABA, FO 92-368. For North Carolina authority dealing with waiver of attorney-client privilege by inadvertent disclosure, see Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc. , 116 F.R.D. 46 (M.D.N.C. 1987).
4. "A lawyer shall . . . keep the client reasonably informed about the status of a matter . . . [and] explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 6(b).
5. While silent on the issue of notice to opposing counsel, our rules do require the receiving attorney divulge the information if responsive to discovery requests. See Rules 7.2 and 7.6 (Comment 3).
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