ABA August 4, 2011

Must a lawyer who receives a party's private emails with their own counsel notify opposing counsel?

Short answer: Not under the Model Rules. The opinion concludes that emails an employer retrieved from an employee's workplace computer were not 'inadvertently sent,' so Rule 4.4(b) does not apply and no Model Rule requires notice, though other law such as a court decision or discovery rule may impose a duty.

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This page answers the general question as of 2011. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The opinion turns on the text of Rule 4.4(b), which governs only documents that were "inadvertently sent." The Committee concludes that emails between an employee and her counsel that the employer retrieves from a stored location are not inadvertently sent: "Rule 4.4(b) does not expressly address this situation, because e-mails between an employee and his or her counsel are not 'inadvertently sent' by either of them," and "a document is not 'inadvertently sent' when it is retrieved by a third person from a public or private place where it is stored or left."

The opinion declines to read Rule 4.4(b) to cover this situation by implication, consistent with Formal Opinions 06-442 (metadata) and 06-440, which reasoned that adding Rule 4.4(b)'s sole notice requirement evidenced an intent to impose no other restrictions on a receiving lawyer. It also rejects arguments that Rules 4.4(a), 8.4(c), 8.4(d), or 1.15(d) independently impose a notice duty, noting Rule 1.15(d) protects a proprietary interest rather than the third party's confidentiality interest. As the opinion summarizes, "the Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing party and his or her counsel."

The opinion stresses that other law may still control. Courts may impose a disclosure obligation through supervisory authority or discovery rules, and "insofar as courts recognize a legal duty in this situation, as the court in Stengart has done, a lawyer may be subject to discipline, not just litigation sanction, for knowingly violating it." Where the governing law is unclear, the lawyer "need not risk violating a legal or ethical obligation," and Rule 1.6(b)(6) permits disclosing that the client retrieved the emails to the extent reasonably believed necessary to comply with that law. If no law can reasonably be read to require notice, the decision belongs to the employer-client, who must be advised of the implications and alternatives under Rules 1.4(b) and 1.6(a) so the client can decide on an informed basis.

In practice

Under this opinion, a lawyer who receives a party's private emails with their own counsel, retrieved by the client rather than mistakenly sent, has no notice duty under the Model Rules themselves. The opinion holds that the lawyer should still check the governing law, because courts may impose a disclosure duty and knowing violation can bring discipline as well as sanction; that Rule 1.6(b)(6) authorizes any disclosure reasonably necessary to comply with such law; and that where no law requires notice, the client decides after being advised of the implications.

Common questions

Q: Does Rule 4.4(b) require me to notify opposing counsel?

A: Per the opinion, no; the emails were retrieved from storage, not "inadvertently sent," so Rule 4.4(b) does not apply.

Q: Do any other Model Rules impose a notice duty here?

A: The opinion concludes none of Rules 4.4(a), 8.4(c), 8.4(d), or 1.15(d) independently imposes an ethical duty to notify in this situation.

Q: Could I still be disciplined for not giving notice?

A: Yes. The opinion notes that where a court recognizes a legal disclosure duty, as in Stengart, knowing violation can yield discipline as well as litigation sanction.

Q: If no law clearly requires notice, who decides whether to give it?

A: The opinion says the employer-client decides, and the lawyer must explain the implications and alternatives under Rules 1.4(b) and 1.6(a).

Background and rules framework

The opinion interprets Model Rule 4.4(b) (notice of inadvertently sent documents) and its Comment [2], concluding the rule does not reach retrieved materials. It considers and rejects independent duties under Model Rules 4.4(a), 8.4(c), 8.4(d), and 1.15(d), and applies Model Rule 1.6 (confidentiality), including 1.6(b)(6), and Model Rule 1.4(b) (informing the client).

Citations and references

Rules of Professional Conduct:

ABA Model Rule 4.4(b) and Comment [2]; 4.4(a)
ABA Model Rule 1.6, including 1.6(b)(6); 1.4(b)
ABA Model Rules 8.4(c), 8.4(d), 1.15(d)

Other opinions cited:

ABA Formal Op. 11-459 (2011): protecting confidentiality of client email
ABA Formal Ops. 06-442 and 06-440 (2006): metadata and unsolicited materials

Cases:

Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010)
Chamberlain Group, Inc. v. Lear Corp., 270 F.R.D. 392 (N.D. Ill. 2010)

Source

Landing page: ABA Formal Ethics Opinions index
Original PDF: ethics_opinion_11_460.pdf

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