What must a lawyer do after receiving a fax, email, or letter containing the other side's confidences that was sent by mistake?

Plain-English summary

The opinion addresses what a lawyer must do upon receiving a misdirected communication, such as a fax sent to the wrong number, an email sent to the wrong list, or a letter to a client mistakenly mailed to opposing counsel, that contains confidences or secrets. It surveys the divided landscape of prior authority: ABA Formal Op. 92-368 (1992) required the recipient to notify the sender and abide by the sender's instructions on disposition, while ABA Model Rule 4.4(b), adopted in 2002, required only prompt notification. Some bodies permitted use of the information; at least one (Philadelphia) imposed no obligation to notify at all.

Resolving the question under the New York Code, the opinion concludes that a receiving lawyer has obligations to notify the sender, refrain from review, and return or destroy the communication on request. It grounds those obligations in DR 1-102(A)(5)'s prohibition on conduct prejudicial to the administration of justice, read together with the profession's interest in preserving confidences (DR 4-101) and the limits on zealous representation in DR 7-101(A), and it draws on the common-law treatment of misdelivered property and mail (DR 9-102(C)).

At the same time, the opinion declines to impose a blanket bar on use. It identifies two limited circumstances in which ethical rules alone do not prohibit use: where the lawyer has a good-faith basis to argue that the inadvertent disclosure waived a privilege, and where the lawyer was exposed to the information before knowing or having reason to know the communication was misdirected. A lawyer may retain a misdirected communication solely to present it for in camera review by a tribunal, provided the lawyer promptly notifies the sender, argues in good faith that privilege was waived or the document was improperly withheld, and reasonably believes the disclosure to the tribunal is relevant to that argument.

Currency note

The New York City Bar has flagged this opinion as superseded: Formal Op. 2003-04 has been superseded by Rule 4.4(b) of the New York Rules of Professional Conduct, adopted in 2009, and, to the extent it imposed requirements beyond Rule 4.4(b), it has been withdrawn by Formal Op. 2012-01. Treat this page as historical context. The bar notes there may be circumstances in which a lawyer may still choose to act in conformity with Formal Op. 2003-04 without violating Rule 4.4(b). Verify the current rule before relying on any requirement described here.

In practice

The opinion's broader requirements (refrain from review, and return or destroy on request) go beyond what New York's current Rule 4.4(b) mandates. Under the opinion as written, the receiving lawyer's core obligation was to promptly notify the sender so the sender could take protective steps; that notification duty is what current Rule 4.4(b) preserves. Because the opinion has been superseded in part, its handling of return, destruction, and use of misdirected materials should be checked against Rule 4.4(b) and Formal Op. 2012-01 before being relied on.

Common questions

Q: If I receive a document sent to me by mistake, must I tell the other side?

A: Yes. The opinion concludes that prompt notification to the sender is essential, so that the sender has a reasonable opportunity to take whatever protective steps it deems necessary.

Q: Can I keep reading a misdirected document once I realize it was not meant for me?

A: No. The opinion concludes that the receiving lawyer should refrain from further review once the lawyer knows or reasonably should know the communication was inadvertently sent, and should return or destroy it if the sender so requests.

Q: Can I ever use information from a misdirected communication?

A: In limited circumstances. The opinion concludes a lawyer is not ethically barred from using information learned before realizing the communication was misdirected, and may retain it solely to present for in camera review where the lawyer argues in good faith that privilege was waived.

Q: Is this opinion still current law in New York?

A: No. The bar states the opinion has been superseded by Rule 4.4(b) (2009) and withdrawn in part by Formal Op. 2012-01, so its requirements beyond notification should be verified against the current rule.

Background and rules framework

The opinion interprets the former New York Code: DR 1-102(A)(5) (conduct prejudicial to the administration of justice, the analog of Model Rule 8.4(d)), DR 4-101 (preservation of confidences and secrets, the analog of Model Rule 1.6), DR 7-101(A) (zealous representation within the bounds of law), and DR 9-102(C) (handling property of another, the analog of Model Rule 1.15). Because the Code had no rule specifically addressing inadvertent disclosure, the opinion reasons from these provisions and from analogies to the law of bailments, restitution, and misdelivered mail. It contrasts ABA Model Rule 4.4(b), which New York later adopted.

Citations and references

Rules of Professional Conduct:

• MR 4.4(b) (duties on receiving inadvertently sent documents) / later adopted as NY Rule 4.4(b)
• MR 8.4(d) (conduct prejudicial to the administration of justice) / NY DR 1-102(A)(5)
• MR 1.6 (confidentiality of information) / NY DR 4-101
• MR 1.15 (safekeeping property) / NY DR 9-102(C)

Cases:

• United States v. Coleman, 196 F.3d 83 (2d Cir. 1999), duty to return misdelivered mail
• Banque Worms v. BankAmerica Int'l, 77 N.Y.2d 362 (1991), restitution for funds credited by mistake

Other opinions cited:

• ABA Formal Op. 92-368 (1992): notify the sender and abide by the sender's disposition instructions
• N.Y. County Op. 730 (2002): obligations on receiving inadvertently disclosed materials
• N.Y. State Op. 749 (2001) and 700 (1998): exploiting an adversary's confidences is prejudicial to the administration of justice

See also

• NYC Bar Ethics Op. 2012-01: Inadvertent Disclosure of Documents
• ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
• Ohio BPC Op. 1993-011: Inadvertently Disclosed Privileged Memorandum

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2003-04-obligations-upon-receiving-a-communication-containing-confidences-or-secrets-not-intended-for-the-recipient/