What must a lawyer do after receiving a document or ESI from the opposing side that was sent by mistake?

Plain-English summary

This is one of a 2019 trilogy on a lawyer's duties upon receiving confidential information; it addresses the inadvertent-disclosure scenario. The opinion holds that ARPC 4.4(b) governs: a lawyer who receives a writing or electronically stored information relating to the representation and knows or reasonably should know it was inadvertently sent "shall promptly notify the sender." The purpose of notice, the opinion explains, is to let the sender take protective measures.

The opinion describes Alaska's rule as a "stop and notify" rule and contrasts it with stricter states, such as New Jersey, that require the receiving lawyer to stop reading and return the document. It explains that whether the receiving lawyer must take additional steps, such as returning or deleting the material, is a matter of substantive law beyond the ethics rules, and that voluntary return or deletion is left to the lawyer's professional judgment. The opinion notes that its earlier Opinion 97-1 rested in part on the now-withdrawn ABA Formal Op. 92-368, and concludes that current ARPC 4.4(b) and its commentary control. It also ties the issue to the duty of technological competence under ARPC 1.1 given the rising incidence of misdirected ESI.

In practice

The opinion holds that, under ARPC 4.4(b) as it stood at the time, conduct that responds to an inadvertently received confidential document must begin with prompt notice to the sender. The opinion frames any further step (returning, deleting, or using the material) as governed by other law and the lawyer's professional judgment under ARPC 1.2 and 1.4, and suggests obtaining a definitive ruling from the court before using such documents to avoid disputes.

Common questions

Q: If opposing counsel emails me a privileged document by mistake, what do I have to do?

A: The opinion holds that under ARPC 4.4(b) the receiving lawyer must promptly notify the sender, so the sender can take protective measures.

Q: Does Alaska require me to stop reading and return the document?

A: No. The opinion describes Alaska's rule as "stop and notify" and contrasts it with stricter states like New Jersey that require stopping and returning; in Alaska, voluntary return or deletion is left to the lawyer's professional judgment.

Q: Can I use the inadvertently disclosed material?

A: The opinion states that whether the material must be returned or may be used is a matter of substantive law beyond the ethics rules, and suggests obtaining a definitive court ruling before using it.

Background and rules framework

The opinion interprets ARPC 4.4(b) (duty to notify the sender of inadvertently sent information), read with ARPC 1.6 (the receiving lawyer's own clients' confidences), ARPC 1.1 (technological competence), and ARPC 1.2 and 1.4 (scope and communication regarding any voluntary further action). It references Federal Rule of Civil Procedure 26(b)(5)'s claw-back provision and notes that ABA Formal Op. 92-368, on which the Bar's earlier Opinion 97-1 partly relied, was later withdrawn.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.4 / ARPC 4.4(b) (notify the sender of inadvertently sent information)
• Model Rule 1.6 / ARPC 1.6 (confidentiality)
• Model Rule 1.1 / ARPC 1.1 (technological competence)

Other opinions cited:

• Alaska Ethics Op. 97-1: receipt of confidential information (predated ARPC 4.4(b))
• Florida Ethics Op. 10-2 (2010); New York State Ethics Op. 842 (2010): duty to keep current with technology

See also

• ABA Formal Op. 05-437: Inadvertently Sent Documents
• CA COPRAC Op. 2013-188: Inadvertent Privileged Document
• AK Ethics Op. 2019-3: Intentional Disclosure

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2019-2-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2019-2
A LAWYER’S DUTY UPON RECEIPT of CONFIDENTIAL INFORMATION –
Inadvertent but Unauthorized Disclosure
The Committee has been asked to provide an opinion about a lawyer’s
professional responsibility when presented with confidential information from an
opposing party when the disclosure was inadvertently made.1 Lawyers, their
staff members and clients occasionally send confidential information to opposing
counsel by mistake. In light of the rapid changes in technology for both lawyers
and clients alike, and the frequency with which this issue arises, the Committee
takes this opportunity to revisit the lawyer’s essential duty upon receipt of
inadvertently disclosed confidential materials.
In earlier times, these mistakes typically occurred when a fax was sent to
the wrong phone number, or an address label was switched on an envelope.
With the proliferation of email, text messages, social media, cloud computing and
electronically stored information (“ESI”), the potential for misdirection of
confidential information has increased exponentially. Litigation cases now
regularly involve thousands, and sometimes millions of client documents which
need to be collected and reviewed for privilege and potential production. The
sheer volume of information and documents can make even routine discovery a
daunting task. As a result, the incidence of inadvertent disclosure is increasing.

1 The receipt of confidential information generally falls into three categories:

1)

the inadvertent disclosure scenario; 2) the intentional disclosure by one with
authority (i.e., a willing party); and 3) the intentional but unauthorized disclosure
by a party’s agent. This opinion addresses inadvertent disclosure only. Ethics
Opinion No. 2019-3 addresses intentional disclosure by one with authority, while
Ethics Opinion No. 2019-1 addresses the intentional but unauthorized disclosure
by a party’s agent.
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Summary of Opinion
The lawyer who receives 2 confidential information in an inadvertent
disclosure3 must promptly notify the opposing party’s lawyer. The lawyer should
either follow the instructions of the adversary’s lawyer, or refrain from using the
materials until a definitive resolution is obtained from a court. Additional
obligations may also be imposed by law.

DISCUSSION
Rule 4.4(b) addresses the ethical obligations of the lawyer who receives a
document or ESI that was inadvertently sent.
A lawyer who receives a writing or electronically stored information
relating to the representation of the lawyer’s client and knows or
reasonably should know that the writing or electronically stored
information was inadvertently sent shall promptly notify the sender.4
The rule recognizes that lawyers occasionally receive information that was
mistakenly sent or produced by opposing parties or their lawyers. Further, the
comment makes clear the purpose of providing notice to the opposing lawyer is
to permit the person to take protective measures. The comment goes on to note
that whether the receiving lawyer must take additional steps, including return of
the writing or electronic information are matters of substantive law beyond the

This opinion addresses the ethical issues for the receiving lawyer. The
obligations of all lawyers to maintain the confidences and secrets of their clients
are addressed in ARPC 1.6.
3 All lawyers have a duty to maintain competence, including a basic
understanding of the benefits and risks associated with relevant technology. See
ARPC 1.1 Comment (Maintaining Competence). A number of state Bar
Associations have issued Ethics opinions requiring lawyers to keep current on
changing technology. See, e.g., Fla. Ethics Op. 10-2 (2010) (lawyer must keep
current with developments in technology to protect confidential information stored
on electronic devices); NY State Ethics Op. 842 (2010) (lawyer has duty to keep
up with advances in technology used in law practice.)
4 ARPC 4.4(b).

2

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scope of the rules of ethics.5 It also notes that some lawyers may choose to
return a writing or delete electronically stored information unread. The decision
to make voluntary return or deletion is a matter typically left to the professional
judgment of the receiving lawyer. As a matter of professional courtesy, and to
avoid unnecessary disputes, it may be advisable before using any such
documents to obtain a definitive ruling from the court regarding whether the
documents must be returned or deleted.
Alaska’s rule is sometimes referred to as a “stop and notify” rule. Other
states go farther and require the receiving lawyer to affirmatively set aside the
material and take no further action on the documents, including reading them, in
order to preserve the status quo.6 For example, the New Jersey rule provides:
“[a] lawyer who receives a document and has reasonable cause to believe that
the document was inadvertently sent shall not read the document or, if he or she
has begun to do so, shall stop reading the document, promptly notify the sender,
and return the document to the sender.”7
In Alaska Bar Association Ethics Opinion 97-18, the Committee
distinguished the mistaken or inadvertent disclosure of confidential information
from other situations. The discussion regarding inadvertently disclosed
information in Ethics Opinion 97-1 was based, in part upon ABA Formal Opinion
92-368, which was later withdrawn due to the amendment of Model Rule 4.4.
In the Committee’s view, the provisions of Rule 4.4(b) and its commentary
control the obligations of the lawyer who receives any information from an
opposing party or lawyer that appears to have been inadvertently disclosed. If

Lawyers practicing in Federal Court will note that Federal Rule of Civil
Procedure 26(b)(5) now contains a specific “claw back” provision relating to
production, presumably inadvertent, of privileged material.
6 See generally James M. Altman, Model Rule 4.4(b) Should Be Amended, 21
Prof. Law., no. 1, at 16 n.7 (2011) (noting that nine jurisdictions prohibit the
receiving lawyer from reading further after realizing the document is confidential).
7 New Jersey RPC 4.4(b) (2004).
8 Ethics Opinion 97-1 was adopted before the addition of Rule 4.4(b).
5

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the receiving lawyer knows, or has reason to know, the material was sent
inadvertently, the lawyer must notify the opposing lawyer. The lawyer should
also carefully review any legal requirements that may be imposed by other law.
Finally, the lawyer may consider further voluntary action consistent with the
lawyer’s professional judgment under Rules 1.2 and 1.4.
Approved by Alaska Bar Association Ethics Committee on January 23, 2019.
Adopted by the Board of Governors on January 31, 2019.

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