May a lawyer use an opposing company’s potentially privileged email that was inadvertently produced in discovery?

Plain-English summary

The lawyer received an email in discovery containing a company lawyer’s advice to another member of the companies involved in the case. The lawyer asked whether it could be used as evidence.

Under the version of Rule 4-4.4(b) addressed, if the lawyer knows or reasonably should know the email was produced inadvertently, the lawyer must promptly notify the sender and allow reasonable time to seek court relief before use. If the sender does not seek or obtain relief, the opinion permits use. It also permits use if the lawyer has no reason to know of inadvertent production.

In practice

The opinion ties the notice and waiting steps to the lawyer’s actual or reasonably expected knowledge of inadvertent production. It permits use after the sender fails to seek or obtain relief.

Common questions

Q: When must the receiving lawyer notify the sender?

A: Promptly when the lawyer knows or reasonably should know the email was provided inadvertently.

Q: Must the lawyer wait before using the email?

A: The opinion requires a reasonable period for the sender to seek court relief after notice.

Q: When does the opinion permit use?

A: It permits use if relief is not sought or obtained, or if the lawyer has no reason to know the email was provided inadvertently.

Background and rules framework

The opinion applies the then-new Rule 4-4.4(b) to a potentially privileged email produced in discovery.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.4

See also

• California Op. 2013-188: Inadvertently Received Privileged Document
• Colorado Op. 108: Inadvertent Disclosure

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20070040/

Original opinion text

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

QUESTION: Attorney represents a minority member of companies. Attorney contends an email produced by the Defendant to Attorney is not subject to attorney-client privilege because, as a member, the client is entitled to see all business records and communications of those companies. The email contains an inquiry from another member to a company attorney and the company attorney’s advice. Attorney questions whether Attorney may ethically use the email as evidence in the case.

ANSWER: If Attorney “knows or reasonably should know” that the email was provided inadvertently, Attorney has an obligation under the new version of Rule 4–4.4(b), to promptly notify the sender that Attorney has the email. Attorney’s notice should provide the sender with a reasonable period of time to seek relief from the court before Attorney uses the email. If the sender does not seek or obtain relief from the court, Attorney may ethically use the email. If Attorney has no reason to know that the email was provided inadvertently, Attorney may ethically use it.