Attorneys: Do You Have An Ethical Obligation To Inform Opposing Counsel Of Privileged Communications In Your Possession?
Once again, technology and law intersect. Here's a typical scenario: An employee sues his o
r her employer. The employer copies the contents of the employee's electronic devices (computer, smart phone, etc) provided by the employer, as the employer is entitled to do, and transmits the contents to employer's counsel. Employer's counsel examines the material and finds several e-mails to and from the employee and employee's counsel, some of which are marked "Attorney-Client Privileged" or something similar.
Pop quiz, hot shot (can't get too many "Speed" references): Does employer's counsel have to inform employee's counsel that it has such communications? After all, Rule 4.4(b) of the American Bar Association Model Rules provides: “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.” Case closed, right? Not so fast. The ABA in its recent ruling Formal Opinion 11-460 reasons that this provision is not applicable as the communication was not sent "inadvertently", as both parties to the communication meant to send it and it arrived at its intended destination. The Committee also declined to hold that the rule "implicitly" covers this.
Having said that, the Committee went on to say that local rules, rules of discovery, local court cases, state codes of professional responsibility or other matters might indicate that disclosure should be made. The Committee reasoned that if there was reasonable belief on the part of the attorney that disclosure was needed to comply with relevant law, the attorney could disclose it under Rule 1.6(b)(6), which permits a lawyer to “reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary ... to comply with other law or a court order". This is true even if there is doubt about the legal obligation. However, if no law or rule can reasonably be read to require a reporting obligation, then it can be disclosed by the attorney only through informed consent by the attorney's client.
We had previously noted in this blog that e-mails sent on company computers or networks may forfeit their attorney-client privilege and that attorneys that are aware that their clients are doing this have an ethical duty to inform them, so this is the other side of the coin.
Texas has not adopted Section 4.4(b) as part of its Code of Professional Responsibility so reference to other rules (such as the "snap back" provisions of Section 193.3(d) for the Rules of Civil Procedure) must be made.
Hey, nobody said this was easy.
