If a California lawyer receives from a third party what appears to be a privileged communication between opposing counsel and opposing counsel's client, can the lawyer read it under a crime-fraud theory?

Plain-English summary

The opinion analyzes a hypothetical in which Attorney, representing Client in a fraud action against Company, receives an unsolicited email from an anonymous ex-employee. The email's body claims the attachment is a confidential communication between Company and Company's counsel proving that the attorney helped plan the alleged fraud. Replies bounce, leaving no way to inquire of Sender. Attorney has opened the email itself but has not opened the attachment.

The committee starts from the State Fund/Rico rule. In State Compensation Insurance Fund v. WPS (1999) and Rico v. Mitsubishi Motors Corp. (2007), the California courts held that a lawyer receiving materials that obviously appear privileged, and where it is reasonably apparent the materials were provided through inadvertence, must (1) refrain from examining the materials beyond what is essential to determine if they are privileged and (2) immediately notify the sender. Rico extended State Fund to work-product materials. The committee notes the standard is objective: whether reasonably competent counsel, knowing the circumstances, would have concluded the materials were privileged.

Applying that framework, the committee makes three findings.

First, the attachment "obviously appears" privileged. The email body itself states that the attachment is a confidential communication between Company and its counsel. Under Clark v. Superior Court (2011), where the dominant purpose of the relationship is attorney-client, the communication is treated as presumptively privileged and review of content is prohibited.

Second, it is reasonably apparent that the materials were disseminated without the owner's authorization. Even though Sender intentionally transmitted the document, the State Fund/Rico rule applies when a third party intentionally sends privileged material to another attorney and it is reasonably apparent that the material was sent without the owner's authorization. The committee relies on Rico's reasoning, which treated the receiving lawyer as bound even though a third party (a court reporter) had supplied the document.

Third, the crime-fraud exception does not vitiate the duties. Under Evidence Code section 956, the crime-fraud exception applies only on a prima facie showing through non-privileged information that the lawyer's services were sought to enable a crime or fraud. The committee, citing Costco (2009), notes Evidence Code section 915 prohibits in camera disclosure of allegedly privileged communications to determine whether the privilege applies absent that prima facie showing. The committee therefore concludes the mere suggestion of crime-fraud in Sender's email does not abrogate Attorney's duties under State Fund and Rico.

The opinion expressly does not address legal issues under Penal Code sections 496 (receiving stolen property) or 504 (computer crimes), the Uniform Trade Secrets Act, protective orders, or duties owed to the third-party Sender. It also notes that whether to return the document, or how, is a matter of professional judgment under ABA Model Rule 4.4 Comment [3].

In practice

Under California's rules as they stood at the time of the opinion, the lawyer's operative steps are: (i) stop reading beyond what is required to confirm the document appears privileged; (ii) notify opposing counsel as soon as possible; (iii) try to resolve the privilege issue with opposing counsel or seek court guidance; and (iv) refrain from disseminating or using the document or its contents absent the owner's consent or court approval. The lawyer should not rely on a personal belief that the crime-fraud exception applies as a basis for opening, reading, or using the document; a prima facie showing through non-privileged information would be required before a court could even review the document in camera. The opinion does not address possible criminal-law exposure under Penal Code sections 496 or 504 or remedies under protective orders. Verify against current Rule 4.4 before relying on this framework.

Common questions

Q: What does a lawyer do when an anonymous sender emails what appears to be opposing counsel's privileged document?

A: Per the opinion, the lawyer may not read the communication beyond what is necessary to confirm it appears privileged, must notify opposing counsel as soon as possible, and may not use the document or its contents absent court approval or the owner's consent.

Q: Does it matter that the third party intentionally sent the document, not opposing counsel?

A: Per the opinion, no. The committee holds that the State Fund/Rico duties apply both when materials were inadvertently provided by the privilege-holder's counsel and when a third party intentionally sends them and it is reasonably apparent the sending was without the owner's authorization.

Q: Can the lawyer read the document because the email asserts a crime-fraud exception?

A: Per the opinion, no. The mere assertion of crime or fraud does not trigger the exception. A prima facie showing through non-privileged information is required, and even an in camera review by a court is subject to Costco and Oxy Resources. The committee says the suspicion of crime-fraud does not abrogate Attorney's duties under State Fund and Rico.

Q: Does the rule apply to work-product as well as attorney-client privileged communications?

A: Per the opinion, yes. Rico extended the State Fund rule to materials protected by the attorney work-product doctrine, irrespective of whether the documents are marked "confidential" or "work product."

Q: What happens if the lawyer reads the document anyway?

A: Per the opinion, improper handling may result in serious adverse consequences, including disqualification of the lawyer and co-counsel and assessment of monetary or evidentiary sanctions, citing Rico, Bak v. MCL Financial Group (2009), and County of Los Angeles v. Superior Court (1990).

Q: Does the opinion address whether the lawyer can use the document under a protective order or filing under seal?

A: Per the opinion, no. The opinion's scope does not address what other options Attorney might have provided the duty not to read and to notify is met.

Background and rules framework

The opinion interprets former Rule 1-100(A) (interpretive use of other authorities), Code of Civil Procedure section 2018.050 (work-product and the crime-fraud carve-out), and Evidence Code sections 915, 952, 954, and 956 (privilege scope and exceptions). The State Fund/Rico framework supplies the operative duty rule. The current California analogue is Rule 4.4(b).

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-100(A)

ABA Model Rules (referenced for guidance):

• ABA Model Rule 4.4(b) and Comment [3]

Statutes:

• California Code of Civil Procedure section 2018.050
• California Evidence Code sections 915, 952, 954, 956
• California Penal Code sections 496, 504 (noted as outside scope)
• California Business and Professions Code section 6100 et seq.

Cases:

• State Compensation Insurance Fund v. WPS (1999) 70 Cal.App.4th 644, duty on receiving privileged materials
• Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, extension to work-product
• Clark v. Superior Court (2011) 196 Cal.App.4th 37, presumption of privilege
• Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725
• Bak v. MCL Financial Group (2009) 170 Cal.App.4th 1118, sanctions
• County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647
• In re Plotner (1971) 5 Cal.3d 714
• Williams v. Superior Court (1978) 81 Cal.App.3d 330
• Oxy Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874
• State Farm Fire and Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625
• BP Alaska Exploration v. Superior Court (1988) 199 Cal.App.3d 1240, crime-fraud prima facie showing
• Cornish v. Superior Court (1989) 209 Cal.App.3d 467
• Titmas v. Superior Court (2001) 87 Cal.App.4th 738
• United States v. Zolin (1989) 491 U.S. 554, crime-fraud in camera procedure

Other opinions cited:

• California State Bar Formal Opinion 2003-161, duties to third persons attempting confidential communication

See also

• CA COPRAC Op. 2007-174: Electronic Client Files and Metadata
• CA COPRAC Op. 2015-193: E-Discovery Competence
• CA COPRAC Op. 2016-195: Client Secrets and Publicly Available Information
• CA COPRAC Op. 2003-161: Confidentiality in Non-Office Consultations

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/2025-11/CAL%202013-188%20%2806-0004%29.pdf

Original opinion text

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

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2013-188

ISSUE: If an attorney receives from a non-party a confidential written communication between opposing counsel and opposing counsel's client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because of the crime-fraud exception to the attorney-client privilege?

DIGEST: If an attorney receives an unsolicited intentionally transmitted written communication between opposing counsel and opposing counsel's client under circumstances reasonably suggesting that it is a confidential communication apparently sent without the consent of its owner, the attorney may not ethically read the communication, even if she suspects the crime-fraud exception might vitiate the privilege. The attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication. The two attorneys should try to resolve the privilege issue or, if that fails, obtain the assistance of a court. Attorney may not read, disseminate, or otherwise use the communication or its contents absent court approval or consent of its owner.

AUTHORITIES INTERPRETED: Rule 1-100(A) of the Rules of Professional Conduct of the State Bar of California. Code of Civil Procedure section 2018.050. Evidence Code sections 915, 952, 954, and 956.

STATEMENT OF FACTS

Attorney represents Client in a fraud lawsuit against Company. During discovery, Attorney receives an unsolicited email from an anonymous Sender, with subject line "Client v. Company," and an icon notice of an attachment to the email. Upon opening the email, the first three lines of the email read, "From: [no sender]" / "To: Attorney" / "Subject: Client v. Company." Attorney's replies to the email consistently generate an automatic "undeliverable" bounce-back notification. The text of the email reads as follows:

I am an ex-employee of Company. I wish to remain anonymous. I don't want any legal help from you and do not want to hear from you at all. Providing you with the attached document is all the help you will get from me. The attached document is a confidential communication between Company and your opposing counsel. It proves that Company planned and perpetrated the fraud with the advice and assistance of your opposing counsel, who was retained for that purpose, and who has been actively involved in the fraudulent scheme from the very outset, long before the incidents described in your complaint. The attached document will prove your case. Read it and see for yourself.

May Attorney ethically open and read the attachment? Must Attorney notify Company's counsel that Attorney has the attachment? When may Attorney use the attachment or the information conveyed in it?

DISCUSSION

The attorney-client privilege protects disclosure of a confidential communication between client and lawyer. (Evid. Code, § 954.)

The attorney-client privilege is a core value of the American justice system. It has been the "hallmark of our jurisprudence for almost 400 years." Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725.

In State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 ("State Fund"), the California Court of Appeal stated:

"When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should [1] refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and [2] shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact."

This same language was adopted by the California Supreme Court in 2007, in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817-818 ("Rico"), when it extended the State Fund rule beyond materials protected by the attorney-client privilege to materials protected by the attorney work-product doctrine, irrespective of whether the documents are marked as "confidential" or "work product."

The State Fund/Rico rule is an objective one. In assessing whether a lawyer has complied with the standard, courts must consider "whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel's examination should have ended."

Improper handling of an opposing party's confidential document(s) may result in serious adverse consequences to that lawyer and his or her client, such as disqualification of the lawyer and/or co-counsel, as well as the assessment of monetary or evidentiary sanctions.

Rico and State Fund impose certain ethical duties upon the receiving lawyer when (a) the lawyer receives materials that "obviously appear" to be privileged or "otherwise clearly appear to be confidential and privileged" and (b) "it is reasonably apparent" that the materials were inadvertently disseminated.

1. "Obviously Appear" or "Otherwise Clearly Appear to Be Confidential and Privileged"

In Clark v. Superior Court (2011) 196 Cal.App.4th 37, 49, the court determined that the transmission of information between attorney and client is presumed to be privileged, regardless of its content. In affirming disqualification, the Court of Appeal focused its inquiry on the relationship of the parties to the communication. It stated that where the party claiming privilege shows that the dominant purpose of the relationship between the parties to the communication was attorney-client, the court treats the communication as protected by the privilege, and review of its content is therefore prohibited.

Applying the foregoing authorities to our hypothetical, the attachment is privileged. The body of the email expressly states, "[t]he attached document is a confidential communication between Company and your opposing counsel." On its face, it is an attorney-client communication purporting to show advice and assistance from attorney to client, and "obviously appears" or "otherwise clearly appears" to be attorney-client privileged.

2. "Reasonably Apparent" that the Materials Were Inadvertently Disseminated

In our hypothetical, Attorney did not receive Company's document from opposing counsel through the Company's inadvertence. Rather, Attorney received Company's document from Sender, an unknown third party, who intentionally transmitted it. However, given the strong public policies underlying State Fund and Rico, we conclude the ethical duties set forth in State Fund and Rico apply both when "it is reasonably apparent that the materials were provided or made available through inadvertence" by the privilege holder's counsel himself, or when a third party intentionally sends privileged materials to another attorney, and it is reasonably apparent that those materials were sent without their owner's authorization.

The Court's analysis in Rico supports this conclusion. The Rico court adopted the trial court's finding that the receiving lawyer "came into the document's possession through inadvertence," even though the receiving lawyer claimed that a third party – a court reporter – gave him the relevant document in the first instance and, therefore, there was no inadvertence. The salient point of Rico was that it was reasonably apparent to the receiving lawyer in Rico that neither the author nor the intended recipient of the document authorized its dissemination.

3. Crime-Fraud Exception

Finally, under our hypothetical scenario, the crime-fraud exception to the attorney-client privilege does not vitiate Attorney's duties under State Fund and Rico. The crime-fraud exception, if established, expressly applies to communications otherwise shielded by the attorney-client privilege. Evidence Code section 956. The burden is on the party claiming that the crime-fraud exception applies to make a prima facie showing that the services of the lawyer were "sought or obtained" to enable or to aid the client to plan to commit a crime or fraud. The mere assertion of a crime or fraud is insufficient to trigger the exception – there must be a prima facie showing by the proponent through non-privileged information.

In Costco, supra, 47 Cal.4th at pp. 739-740, the California Supreme Court considered and rejected arguments that Oxy Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 and Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480 authorized an in camera review of privileged information to determine whether or not an exception to the privilege applied, absent such prima facie showing.

Thus, even though Attorney received a purported confidential attorney-client communication under circumstances suggesting that the communication may not be privileged because of the crime-fraud exception, that mere suggestion, standing alone, does not work to abrogate Attorney's ethical duties under State Fund and Rico.

CONCLUSION

Given the state of the law and the value placed on the attorney-client privilege, attorneys must use caution when faced with an inadvertent or unauthorized disclosure situation – even under circumstances that may suggest an exception to the privilege applies. An attorney who receives an unsolicited intentionally transmitted written communication between opposing counsel and opposing counsel's client under circumstances reasonably suggesting that it is a confidential communication apparently sent without the consent of its owner may not ethically read the communication. Attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication. At the very least, the attorneys should then try to resolve the issue of privilege, or the attorneys may seek court guidance as to the applicability of the crime-fraud exception. This opinion does not address what other options Attorney might have, provided that Attorney complies with the ethical obligation to not read the communication and to notify opposing counsel as described above.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only.