In Kentucky, what must a lawyer do on receiving documents clearly not intended for them, and can the lawyer be disciplined for arguing the privilege was waived?

Plain-English summary

The Board revisited E-374 at the request of the Louisville Bar Association, affirmed the substance of the original opinion, reordered the questions, and emphasized the limits and risks of asserting a waiver of privilege. On the question it treated as clearest, the Committee agreed with ABA Formal Opinion 92-368 (1992) that when a lawyer receives materials under circumstances in which it is clear they were not intended for the receiving lawyer, the lawyer should refrain from examining them, notify the sender, and abide by the sender's instructions about their disposition.

The more contested question was whether a lawyer should be disciplined for trying to use such materials under a claim that the privilege had been "waived." The Committee answered no, treating whether inadvertence waives a privilege as a question of law it does not decide (citing E-297), and noting the legal authorities are divided with no controlling Kentucky caselaw. Because a lawyer's duty of loyalty runs to the lawyer's own client and not to the opponent's lawyer, the opinion concluded that, while lawyers are strongly urged to return such materials unread, a lawyer is entitled to argue a good-faith claim of waiver before the court under Rules 3.1 and 3.4(c). The Committee cautioned, however, that any claim of inadvertent waiver is made at the risk of exclusion of the evidence and disqualification, observing that many courts reject inadvertent waiver on the ground that waiver requires voluntary relinquishment of a known right and only the client can waive the privilege.

Currency note

This opinion was revised in 1995, before Kentucky's adoption of the 2002 Ethics 2000 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that Rule 4.4 was later amended to specifically address the handling of documents mistakenly sent to a lawyer, and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: What should a lawyer do on clearly receiving documents meant for someone else?

A: Per the opinion, the lawyer should refrain from examining the materials, notify the sender, and abide by the sender's instructions about their disposition, agreeing with ABA Formal Op. 92-368.

Q: Could a lawyer be disciplined for arguing the privilege was waived?

A: No. The opinion concluded a lawyer should not be disciplined for making a good-faith legal argument of waiver on the client's behalf under Rules 3.1 and 3.4(c).

Q: Did the opinion decide whether inadvertent disclosure actually waives the privilege?

A: No. The Committee treated that as a question of law it does not decide, noting the authorities are divided and there is no controlling Kentucky caselaw, and warning that asserting waiver risks exclusion and disqualification.

Background and rules framework

The opinion interprets KRPC 3.1 (meritorious claims and contentions; Model Rule 3.1) and KRPC 3.4(c) (fairness to opposing party, open refusal based on an assertion that no valid obligation exists; Model Rule 3.4), and notes that the conduct is now specifically addressed by amended Rule 4.4 (Model Rule 4.4). It treats whether a privilege was waived as a legal question outside the Committee's role.

Citations and references

Rules of Professional Conduct:

• MR 3.1 / KRPC 3.1 (meritorious claims and contentions)
• MR 3.4(c) / KRPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal, except open refusal)
• MR 4.4 / KRPC 4.4 (now addressing inadvertently sent documents)

Cases:

• Resolution Trust Corp. v. First American Bank, 10 ABA/BNA Law.Man.Prof.Con. 365 (W.D. Mich. 1994)
• Kusch v. Ballard, 10 ABA/BNA Law.Man.Prof.Con. 366 (Fla. App. 1994)

Other opinions cited:

• ABA Formal Op. 92-368 (1992): duty to return inadvertently sent materials unread
• D.C. Op. 256 (1995); Maine Op. 146 (1994); Maryland Op. 89-53; Ohio Op. 93-11
• KBA E-297 (1984): Committee does not decide questions of law

See also

• KBA Ethics Op. E-365: Client Party Contact, Rule 4.2, and a Divorce Mediator
• KBA Ethics Op. E-382: Ex Parte Contact With a Represented Organization's Current Employees
• KBA Ethics Op. E-372: Contacting an EEOC Complaining Witness

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-374.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-374 (Revised)
Issued: November 1995

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, Rule 4.4 specifically addresses the handling of documents that were mistakenly
sent to the lawyer. Lawyers should consult the current version of the rules and
comments, SCR 3.130 (available at http://www.kybar.org), before relying on this
opinion.

Question 1:

If a lawyer received materials that were not intended for the receiving lawyer,
should the lawyer be disciplined if the lawyer attempts to use the documents
pursuant to a good faith claim that any privilege or protection that would
otherwise have obtained has been waived.

Answer:

No. While such conduct is discouraged (see Answer to Question 2), a lawyer
should not be disciplined if the lawyer is making a good faith legal argument on
behalf of the lawyer's client.

References:

KRPC Rules 3.1, 3.4(c). See also Maine Op. 146 (1994). Cf. D.C. Op. 256
(1995); Maryland Op. 89-53; Ohio Op. 93-11.

Question 2:

If a lawyer received materials under circumstances in which it is clear that they
were not intended for the receiving lawyer, should the lawyer refrain from
examining the materials, notify the sender, and abide by the instructions of the
sender regarding the disposition of the materials.

Answer:

Yes.

References:

ABA Formal Op. 92-368 (1992); DC Op. 256 (1995).
OPINION

The Board revisited the issues in KBA E-374 at the request of the Louisville Bar
Association (LBA). After receiving the views of the LBA the Board affirms the substance of E374, but changes the order in which the questions are presented, and emphasized the limits of
and risks associated with the assertion of a claim of "waiver" of privilege.
The Committee and the Board are in agreement with the view expressed in ABA Formal
Opinion 92-368 (1992) that when a lawyer receives materials under circumstances in which it is
clear that they were not intended for the receiving lawyer, the lawyer should refrain form
examining the materials, notify the sender, and abide by the senders instructions regarding the
disposition of the materials. See ABA Formal Op. 92-368; D.C. Op. 256 (1995).
The controversial question appears to be whether a lawyer should be disciplined for
attempting to use such materials pursuant to a claim of "waiver" of privilege. Whether or not the
sending lawyer's inadvertence and possible violation of Rule 1.6 can waive a privilege presents a
question of law. See KBA E-297 (1984) (the Committee does not decide questions of law). The
question of what labels, headings or other notices are sufficient to preclude a claim of waiver is
also a question of law. Whether or not there is such a thing as "inadvertent waiver" is a hotly
debated question. The legal authorities are divided, and the Committee is not aware of any
"controlling" caselaw in Kentucky. For a thorough discussion of the law in each federal circuit
see Roberta Harding, Waiver: A Comprehensive Analysis of the Consequence of Inadvertently
Producing Documents Protected by the Attorney-Client Privilege, 42 Cath. U.L. Rev. 465
(1993). See also ABA Litigation News (August/September 1995) pp. 1, 7.
A lawyer's duty of loyalty runs to the lawyer's client and not to his opponent's lawyer.
Compare D.C. Op. 256 (1995)(D.C. law recognizes the concept of inadvertent waiver, and
lawyer may attempt to use materials if lawyer read the materials before realizing it was
inadvertently produced - duty to represent client zealously and diligently discussed.) Lawyers
are strongly urged to return such materials unread, but if the caselaw permits a lawyer is entitled
to argue a good faith claim of "waiver" before the court in which an action is pending. See
KRPCs 3.1 and 3.4(c) (... "open refusal [to follow a rule] based on an assertion that no valid
obligation exists.") Maine Op. See also Resolution Trust Corp. v. First American Bank, 10
ABA/BNA Law.Man.Prof.Con. 365 (W. D. Mich. 1994); Kusch v. Ballard, 10 ABA/BNA
Law.Man.Prof.Con. 366 (Fla.App. 1994) (refusing to disqualify counsel on the facts of the case,
and alluding to the possibility [unlikely perhaps] that a lawyer might deliberately "fax"
something to opposing counsel to set that lawyer up for disqualification).
However, the Committee and the Board caution counsel that any claim or "inadvertent
waiver" is made at the risk of exclusion of evidence and disqualification. The concept of
"inadvertent waiver" of attorney-client privilege has been rejected by many courts on the
grounds that waiver is thought to require the voluntary relinquishment of a known right, and that
only the client can waive the privilege.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.