What must a lawyer do after receiving an opposing party's privileged documents that were sent by mistake?

Plain-English summary

The committee noted that a growing number of bar members had faced ethical problems from the inadvertent receipt or disclosure of attorney-client or work product privileged documents from an adversary, whether through a document production, a misdirected fax or email, a switched-envelope mailing, or a misunderstood distribution list. The committee observed that whether a disclosure was inadvertent, and whether it impliedly waives the attorney-client or work product privilege, are questions of fact and law beyond the authorized scope of an ethics opinion, and pointed to academic discussions of those legal issues.

On the ethical question within its scope, the committee concluded that an attorney who realizes or reasonably believes he or she has received documents that were inadvertently misdelivered is ethically obligated to promptly notify the sender of the receipt. It is then up to the sender to take any further action. A note records that, since the opinion was adopted, the Florida Supreme Court adopted Rule 4-4.4(b), providing that a lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know it was inadvertently sent shall promptly notify the sender.

Currency note

This opinion was issued in 1994, before The Florida Bar's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. A note appended to the opinion records that, after it was adopted, the Florida Supreme Court adopted Rule 4-4.4(b), which now expressly requires prompt notice to the sender of an inadvertently sent document.

Common questions

Q: What must a lawyer do upon receiving an adversary's privileged documents sent by mistake?

A: Under this opinion, promptly notify the sender of the receipt; the further action is then up to the sender.

Q: Did the committee decide whether the privilege was waived?

A: No; the committee said whether a disclosure was inadvertent and whether it waives the attorney-client or work product privilege are questions of fact and law beyond the scope of an ethics opinion.

Q: Is there now a rule on this?

A: A note appended to the opinion records that the Florida Supreme Court later adopted Rule 4-4.4(b), expressly requiring prompt notice to the sender.

Background and rules framework

The opinion addressed a lawyer's duty on receiving an adversary's inadvertently disclosed privileged materials. A note records that the conduct is now governed by Rule 4-4.4(b) (Model Rule 4.4(b)), which the Florida Supreme Court adopted after the opinion issued.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.4(b) / Fla. Rule 4-4.4(b) (duties on receiving an inadvertently sent document; adopted after this opinion, per the note)

Other opinions cited:

• Fla. Ethics Op. 74-7

See also

• FL Bar Ethics Op. 07-1: Client's Wrongfully Obtained Documents
• FL Bar Ethics Op. 06-2: Metadata in Electronic Documents
• FL Bar Ethics Op. 14-1: Client Social Media Cleanup and Spoliation

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-93-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-93-3.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 93-3
February 1, 1994
Advisory ethics opinions are not binding.
An attorney who receives confidential documents of an adversary as a result of an inadvertent release is ethically obligated to promptly notify the sender of the attorney's receipt of the documents.
Note: Since this opinion was adopted, the Supreme Court of Florida adopted Rule 4-4.4(b), which states that "[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."
Opinion: 74-7

It has come to the attention of the Professional Ethics Committee that a growing number of Florida Bar members have faced ethical problems in connection with the inadvertent receipt or disclosure of attorney-client or work product privileged documents from an adversary. Such an inadvertent disclosure might occur as part of a document production, a misdirected facsimile or electronic mail transmission, a "switched envelope" mailing, or misunderstood distribution list instructions.

Whether the disclosure was inadvertent, and whether inadvertent disclosure impliedly waives the attorney-client privilege or work product privilege, are questions of fact and law that are beyond the authorized scope of an ethics opinion. Florida Ethics Opinion 74-7. For a discussion of the legal issues, see, e.g., R.Franco & M.Pringle, The Inadvertent Waiver of Privilege, 26 Tort & Ins. L.J. 637 (1991); Meese, Inadvertent Waiver of the Attorney-Client Privilege, 23 Creighton L. Rev. 513 (1990); W. Ayers, Attorney Client Privilege: The Necessity of Intent to Waive the Privilege in Inadvertent Disclosure Cases, 18 Pac. L.J. 59 (1986); J. Grippando, Attorney-Client Privilege: Implied Waiver Through Inadvertent Disclosure of Documents, 39 U. Miami L. Rev. 511 (1985).

The Committee is of the opinion that an attorney, upon realizing or reasonably believing that he or she has received a document or documents that were inadvertently misdelivered, is ethically obligated to promptly notify the sender of the attorney's receipt of the documents. It is then up to the sender to take any further action.