What must a Mississippi lawyer do after obtaining an opposing party's privileged attorney-client communication that may not have been intentionally waived?

Plain-English summary

The Committee was asked what a lawyer must do when the lawyer or the lawyer's client comes into possession of an attorney-client communication between the opposing party and opposing counsel, under conditions where the opposing party may not have intended to waive the privilege. The opinion frames the problem as a collision between the duty of zealous representation and the duty to act in a manner that promotes public confidence in the integrity of the legal system.

The opinion observes that nothing in the Mississippi Rules of Professional Conduct directly addresses an opposing party's attorney-client privilege, but it reads Rule 8.4(d) as placing an obligation on every lawyer to take steps to preserve the privilege in order to effect the orderly administration of justice. It also points to the "Scope" of the Rules, which states that the rules are not intended to govern the judicial application of the attorney-client privilege but that a client is entitled to expect privileged communications will generally be protected.

The opinion draws on ABA Formal Opinion 94-382, which addressed a lawyer's receipt of an adverse party's privileged or confidential materials and concluded the best course is to notify the adversary's lawyer and then either follow that lawyer's instructions or refrain from using the materials until a court resolves their proper disposition. Adopting reasoning from Utah State Bar Ethics Advisory Opinion No. 99-01, and grounding the duty in the Lawyer's Creed adopted by the Board of Bar Commissioners, the opinion concludes that fundamental decency requires the receiving lawyer to advise opposing counsel of the disclosure regardless of the specific facts. Once both parties know of the disclosure, they can address the legal question of waiver, by agreement or, if necessary, by seeking judicial resolution.

In practice

The opinion holds that, under the Mississippi rule as it stood at the time of the opinion, a lawyer who obtains an opposing party's privileged attorney-client communication that was not intentionally waived must advise opposing counsel of the fact of the disclosure, regardless of how the materials came to the lawyer. The opinion treats the separate question of whether the privilege was in fact waived as a legal determination for the parties or the court, not for the receiving lawyer to decide unilaterally.

Common questions

Q: If I receive an opposing party's privileged email or document, can I just use it?

A: Not without first telling opposing counsel. The opinion concludes the receiving lawyer should advise opposing counsel of the disclosure regardless of the facts, and (following ABA Formal Op. 94-382) either follow opposing counsel's instructions or refrain from using the materials until a court resolves their disposition.

Q: Does it matter how I came to possess the privileged materials?

A: For the duty to notify, no. The opinion concludes the lawyer should advise opposing counsel "regardless of the specific facts surrounding disclosure." Whether the privilege was actually waived is a separate legal question that turns on the circumstances.

Q: Who decides whether the privilege was waived?

A: The opinion concludes that once the disclosure is known to both sides, the parties assess waiver and its legal implications; in some instances they can agree on how to handle it, and in others it may be necessary to seek judicial resolution.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 8.4(d) (conduct prejudicial to the administration of justice; cf. Model Rule 8.4(d)) and relies on the Preamble and Scope of the Mississippi Rules. It also draws persuasive authority from ABA Formal Opinion 94-382, Utah State Bar Ethics Advisory Opinion No. 99-01, and the Lawyer's Creed adopted by the Board of Bar Commissioners of The Mississippi Bar.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 8.4(d) (conduct prejudicial to the administration of justice) (cf. Model Rule 8.4(d))
• Preamble and Scope, Mississippi Rules of Professional Conduct

Other opinions and authorities cited:

• ABA Formal Opinion 94-382 (receipt of an adverse party's privileged or confidential materials)
• Utah State Bar Ethics Advisory Opinion No. 99-01
• The Lawyer's Creed of The Mississippi Bar

See also

• ABA Formal Op. 06-440: Unsolicited Receipt of Privileged Materials
• ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
• ABA Formal Op. 11-460: Receiving Third-Party Email With Counsel

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/253/
• Original PDF: https://www.msbar.org/media/1069/et_op_253-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 253

OF THE MISSISSIPPI BAR

RENDERED June 17, 2005

AMENDED April 06, 2013

CLIENT CONFIDENCES

The Ethics Committee of The Mississippi Bar has been asked to render an opinion on the following issue:

What are an attorney's ethical obligations when the attorney or his client has obtained an attorney-client communication between an opposing party and opposing counsel under conditions where the opposing party may not have intended to waive the attorney client privilege?

In determining a course of action, a number of professional and ethical obligations collide. On the one hand, the Preamble to the Mississippi Rules of Professional Conduct requires that an attorney represent a client zealously. On the other hand, our duty of zealous representation must be executed concurrently with the ethical obligation to "act in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession." Inadvertent Disclosure of Email, written by Robert C. Port, Hassett Cohen Goldstein & Port, LLP, Atlanta, GA.

Although there is nothing in the Rules of Professional Conduct that directly addresses the attorney-client privilege as it applies to an opposing party, we believe that Rule 8.4(d) places an obligation upon every lawyer to take steps to preserve the attorney-client privilege in order to effect the orderly administration of justice. Furthermore, the "Scope" of the Rules of Professional Conduct notes that the rules are not intended to exhaust the moral and ethical considerations that should govern a lawyer, but are designed to provide a framework for the ethical practice of law. This section also notes that the rules are not intended to govern or affect the judicial application of the attorney-client privilege, but that the client is entitled to expect communications within the scope of the privilege will generally be protected.

ABA Formal Opinion 94-382 addressed a situation similar to the one before this committee. The ABA was asked to render an opinion where a third party provided an attorney-client communication to a lawyer, without being solicited to do so. The ABA opinion declined to state an absolute rule regarding use of the materials, as some circumstances might call for waiver and others might not. The ABA opinion, however, concluded that the best course of action was for the receiving attorney to advise opposing counsel of the disclosure, and then either return the documents or seek assistance from the court in determining the appropriate course of action under the particular facts at hand:

A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be privileged or confidential should, upon recognizing the privileged or confidential nature of the materials, either refrain from reviewing such materials or review them only to the extent required to determine how appropriately to proceed; she should notify her adversary's lawyer that she has such materials and should either follow instructions of the adversary's lawyer with respect to the disposition of the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

Notwithstanding the Rules of Professional Conduct, the Opinions of the ABA, and/or other jurisdiction's ethics opinions, the Lawyer's Creed was adopted by the Board of Bar Commissioners of The Mississippi Bar for governing a lawyer's actions in his association with his fellow professionals and clients. The Creed is the basis upon which every attorney in Mississippi should be bound. The Creed pledges to opposing parties and their counsel fairness, integrity, and civility.

This Committee believes that fundamental decency requires that an attorney in possession of an opposing party's attorney-client communications for which the attorney-client privilege has not been intentionally waived should advise opposing counsel of the fact of its disclosure, regardless of the specific facts surrounding disclosure. We adopt language used by the Utah State Bar in Ethics Advisory Opinion No. 99-01 which says:

This approach has the virtue of separating the factual determination regarding the legal merits regarding waiver from the ethical determination of what an attorney ought to do. It also recognizes that the receiving attorney may not have all of the facts relevant to a legal determination, and it guards against subconscious bias in the receiving attorney's consideration of the facts. Finally, it avoids the appearance of impropriety inherent in allowing a receiving attorney to make the determination under what circumstances to advise opposing counsel.

Once the fact of disclosure is before both parties, they can then turn to the legal implications of the disclosure and a legal assessment of whether waiver has occurred. In some instances the parties may be able to agree regarding how to handle the disclosure. In other instances, it may be necessary to seek judicial resolution of the legal issues.