What must a Missouri lawyer do with opposing-party emails a client accessed using the opposing party's login?

Plain-English summary

A dissolution client used the opposing party's login to access emails, including communications with counsel. The opinion does not decide whether that access was wrongful.

Rule 4-4.4(b) requires prompt sender notice if the lawyer knows or should know information was inadvertently sent. If wrongfully obtained, using it may violate Rule 4-4.4(a) or Rule 4-8.4(c). Applicable law controls possible notice, return, deletion, destruction, or inaccessibility duties, and nondisclosure may implicate Rule 4-3.4 while confidentiality remains relevant.

The lawyer must consult the client about professional duties and matters assigned to the lawyer's judgment. The official page notes that Rule 4-4.4 Comments [2] and [3] changed effective December 1, 2021.

Currency note

The official source states that this 2019 opinion predates the December 1, 2021 amendments to Rule 4-4.4 Comments [2] and [3].

In practice

Under this opinion, the ethics analysis depends first on the unresolved legal character of the acquisition and then on notice, use, disclosure, disposition, and consultation duties.

Common questions

Q: Does the opinion decide whether the client's access was wrongful?

A: No.

Q: When is prompt notice required?

A: When the lawyer knows or should know the information was inadvertently sent.

Q: May the lawyer use wrongfully obtained material?

A: The opinion warns that use may violate Rules 4-4.4(a) and 4-8.4(c).

Background and rules framework

Rules 4-4.4 and 4-8.4 govern third-person rights and dishonest conduct; Rules 4-3.4, 4-1.6, and 4-1.8 address disclosure and fairness; Rules 4-1.2 and 4-1.4 govern consultation.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.2, 4-1.4, 4-1.6, 4-1.8(b), 4-3.4, 4-4.4(a), 4-4.4(b), and 4-8.4(c)

See also

• Colorado Ethics Op. 108: Inadvertently Disclosed Documents
• Missouri Informal Op. 2021-13: Metadata and Confidentiality

Source

• Landing page: Missouri Informal Opinion 2019-01

Original opinion text

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

Reference Note: Rule 4–4.4, Respect for Rights of Third Persons, was amended effective December 1, 2021 as to Comments [2] and [3]. This opinion predates those amendments.

Question: Attorney’s Client in a pending dissolution sent Attorney electronic copies of email correspondence between opposing party and various third persons, including opposing party’s counsel. Client obtained access to the information through opposing party’s email account, for which Client possesses login information. What is Attorney required to do with the information?

Answer: Whether Client inappropriately or wrongfully obtained opposing party’s communications with others is a question of law and fact outside the scope of an informal ethics opinion. If Attorney knows or should know the information was inadvertently sent, Rule 4–4.4(b) requires Attorney to promptly notify the sender. If the information was inappropriately or wrongfully obtained, use of the information by Attorney may violate Rule 4–4.4(a), Respect for Rights of Third Persons, and/or Rule 4–8.4(c), which forbids engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See also Rule 4–4.4, Comment [1]. Attorney should review applicable law as to Attorney’s legal duties regarding inappropriately or wrongfully obtained information, including whether to notify the sender to allow protective action to be taken, and whether to return, delete, destroy or otherwise make inaccessible any inappropriately or wrongfully obtained information. See Rule 4–1.2, Comment [2]. If Attorney has an ethical or legal duty to disclose Attorney’s possession of the information, failure to do so could violate Rule 4–3.4, Fairness to Opposing Party and Counsel. But see Rules 4–1.6 and 4–1.8(b). Attorney should consult with the client about Attorney’s professional obligations related to the information and aspects of the matter that are in Attorney’s professional judgment per applicable law and court rules. See Rule 4–4.4, Comment [3]; see also Rules 4–1.2 and 4–1.4.