If opposing counsel mistakenly mails a lawyer a privileged letter meant for her own client, can the lawyer keep it and use it?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
Opposing counsel in a civil case mailed the inquiring lawyer a letter that was addressed to the president of her own client. The inquiring lawyer's associate, assuming the office had merely been copied, read and filed it. While preparing for a hearing, the inquiring lawyer read the letter for the first time, saw that it contained a significant piece of evidence he had not previously known about, and told opposing counsel he had it. Opposing counsel claimed the letter was privileged and demanded its return. The lawyer asked what his responsibilities were.
The committee noted that the authority on this question was contradictory, both in Massachusetts and elsewhere, citing among others In re Reorganization of Electric Mutual Liability Insurance, its own Opinion 94-6, and ABA Opinion 92-368. It observed that there was no definitive Massachusetts authority for the specific situation in which counsel herself had mailed the confidential letter to the opposing side. Given that conflict, and assuming that resisting the demand would materially benefit the lawyer's client, the committee concluded that the duty under Rule 1.3 to represent the client zealously within the bounds of the law required the lawyer to refuse the request. Opposing counsel remained free to seek a court order, and if she did, the lawyer should then argue to the tribunal that the letter's contents were not protected.
The committee was careful to limit its answer. It expressly declined to opine on whether the lawyer had been obligated to disclose to opposing counsel that he had received and read the letter, because it had been asked only after the lawyer already disclosed his possession of the document, at a point when the parties could still obtain a judicial ruling on his ability to use it.
Currency note
This opinion was issued in 1999, before Massachusetts's adoption of the 2015 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 Treat this page as historical context, not current guidance.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: Did the lawyer have to give the misdirected letter back when opposing counsel demanded it?
A: The committee concluded he did not. Assuming resisting would materially benefit his client, his duty of zealous representation under Rule 1.3 supported refusing the demand and leaving opposing counsel to seek a court order.
Q: What was the lawyer supposed to do if opposing counsel went to court?
A: The committee said that if opposing counsel sought a court order, the lawyer should then argue before that tribunal that the contents of the letter were not protected by the attorney-client privilege.
Q: Did the opinion say whether the lawyer had to tell opposing counsel he had read the letter?
A: No. The committee expressly declined to opine on that question, because it was asked only after the lawyer had already disclosed his possession of the document.
Background and rules framework
The opinion turned on Mass. R. Prof. C. 1.3 (diligence and zealous representation within the bounds of the law), corresponding to Model Rule 1.3 as it stood at the time. The committee framed the surrounding privilege and waiver questions as matters of substantive law for a court to decide, noting the conflicting authority rather than resolving it.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.3 / Mass. R. Prof. C. 1.3 (diligence; zealous representation within the bounds of the law)
Cases:
- In re Reorganization of Electric Mutual Liability Insurance (Bermuda), 425 Mass. 419 (1997) (disclosure by an anonymous source may not by itself waive privilege)
- International Digital Systems Corp. v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass. 1988)
Other opinions cited:
- MBA Opinion 94-6 (government lawyer's use of privileged corporate documents received without agency participation)
- ABA Formal Opinion 92-368 (receipt of inadvertently produced confidential materials)
See also
- ABA Formal Op. 05-437: Inadvertent disclosure of confidential materials
- ABA Formal Op. 06-440: Unsolicited receipt of privileged materials
Source
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