What must a lawyer do with privileged documents an opponent produced by mistake, and is the disclosing lawyer in trouble?
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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 256 (adopted May 16, 1995) addressed inadvertent disclosure of privileged material in discovery. In a securities arbitration, the claimant's lawyer gave the respondent's lawyer access to a large volume of documents; after copies were delivered, the claimant's lawyer said that some handwritten notes contained privileged attorney-client communications. The documents bore no indication of privilege, and the respondent's lawyer did not learn of their status until after reading them. The committee noted it could not decide whether the privilege was waived (a question of evidence law) but addressed two ethics questions: the receiving lawyer's obligations, and whether the disclosing lawyer committed a violation.
On the receiving lawyer, the committee drew a line based on the lawyer's knowledge of the inadvertence. Where documents arrive with no indication that disclosure was a mistake and are read in good faith before any notice, the committee concluded the receiving lawyer commits no violation by keeping and using them. It reasoned that a lawyer may presume materials delivered in the ordinary course were meant to be delivered; that under D.C.-area case law inadvertent disclosure waives the privilege (citing Wichita Land & Cattle and In re Sealed Case); that once read, information cannot be purged from the lawyer's mind; and that an ethical bar on using it could itself create a personal-interest conflict under Rule 1.7(b)(4) against the duty of diligent representation under Rule 1.3. Where, instead, the receiving lawyer learns of the inadvertence before reading, the committee concluded the lawyer must, under Rule 1.15, safeguard and return the documents (which are another's property) and would violate Rule 8.4(c) by reading or using them, likening it to keeping the contents of a found wallet. Cases between these poles turn on the receiving lawyer's actual knowledge.
The committee expressly disagreed with ABA Formal Opinion 92-368 to the extent that opinion would require a lawyer to refrain from using material even after reading it without prior knowledge of the inadvertence, and grounded its own contrary conclusion in Rules 8.4(c) and 1.15 rather than general precepts.
On the disclosing lawyer, the committee concluded that a truly inadvertent (negligent) disclosure does not violate Rule 1.6(a), because that rule bars only "knowing" disclosure of confidences and secrets. It noted that the disclosure could violate Rule 1.6(e) where it resulted from a failure to supervise an associate or employee handling the production, or could violate Rule 1.1 (competence) where it resulted from a lack of the thoroughness or care the rule requires, though the fact of an inadvertent disclosure is not by itself evidence of a Rule 1.1 violation.
Currency note
This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer use privileged documents the other side produced by mistake?
A: It depends on timing. The committee concluded that a lawyer who reads documents bearing no sign of confidentiality in good faith before learning of the mistake commits no violation in keeping and using them.
Q: What if the lawyer learns of the mistake before reading the documents?
A: Then the lawyer must return them. The committee concluded that under Rule 1.15 the documents are another's property to be safeguarded and returned, and that reading or using them would violate Rule 8.4(c).
Q: Does an accidental disclosure get the disclosing lawyer in trouble?
A: Not automatically. The committee concluded that a truly negligent disclosure does not violate Rule 1.6 (which bars only knowing disclosure), but may violate Rule 1.6(e) for failure to supervise, or Rule 1.1 for lack of competence, depending on the facts.
Q: Did the committee follow the ABA's view?
A: Only in part. The committee agreed with ABA Formal Opinion 92-368 where the receiving lawyer knows of the inadvertence, but disagreed with applying that result after the lawyer has already read the documents.
Background and rules framework
The opinion interpreted D.C. Rule 1.6 (confidentiality of client confidences and secrets, including the "knowingly" limit in Rule 1.6(a) and the supervisory duty in Rule 1.6(e)), Rule 1.15 (safekeeping property of others), Rule 8.4(c) (dishonesty), and Rule 1.1 (competence), with reference to Rule 1.7(b)(4) and the duty of diligence under Rule 1.3. It treated the waiver question as one of evidence law outside the committee's authority.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.6(a), (e) / Model Rule 1.6 (confidentiality; knowing disclosure; supervision)
- D.C. RPC 1.15(a), (b) / Model Rule 1.15 (safekeeping property of others)
- D.C. RPC 8.4(c) / Model Rule 8.4 (dishonesty, fraud, deceit, or misrepresentation)
- D.C. RPC 1.1 / Model Rule 1.1 (competence)
Cases:
- Wichita Land & Cattle Co. v. American Federal Bank, 148 F.R.D. 456 (D.D.C. 1992), inadvertent disclosure waives the privilege
- In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989), privileged information must be guarded "like jewels"
- Aerojet-General Corp. v. Transport Indemnity Ins., 22 Cal. Rptr. 862 (Ct. App. 1993), receiving lawyer may use a memo acquired without fault
Other opinions cited:
- ABA Formal Op. 92-368 (1992): obligations on receiving inadvertently disclosed material (followed in part, disagreed with in part)
- D.C. Bar Op. 242: a lawyer's duty as to documents belonging to a third party
See also
- ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
- DC Ethics Op. 318: Disclosure of Privileged Material by a Third Party
- DC Ethics Op. 341: Review and Use of Metadata in Electronic Documents
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-256
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