What must a lawyer do after receiving a document sent by mistake, like a misdirected email?

Plain-English summary

The committee addresses the ethical obligations of a lawyer who receives a misdirected document. It concludes that Rule 4.4(b) supplies the only governing ethical rule (apart from the ordinary truthfulness duties in Rules 4.1 and 8.4): a lawyer who knows or reasonably should know that a document relating to the representation was inadvertently sent must promptly notify the sender. Beyond that notice, the lawyer has no obligation under the New York Rules regarding the retention, return, destruction, review, or use of the document or its contents.

The opinion clarifies several aspects of the rule. "Document" includes email, voicemail, and other electronically stored information that can be read or transcribed, not just paper. The rule applies regardless of whether the sender is a lawyer, client, third party, or tribunal. It applies only to documents "inadvertently sent," so it does not reach documents deliberately sent to the lawyer (for example, by someone other than the original custodian) or the distinct questions raised by metadata. "Promptly" means as soon as reasonably possible, because the notice requirement is meant to eliminate any unfair advantage from delay. The committee also reminds counsel that substantive law, outside its jurisdiction, may impose consequences such as disqualification or evidence-preclusion for reading privileged material, and that decisions about how to use such documents are left to the lawyer's professional judgment in consultation with the client under Rules 1.2 and 1.4.

Finally, the opinion withdraws the committee's earlier Opinion 2003-04 to the extent that opinion (issued under the former Code) went beyond Rule 4.4(b) by requiring the receiving lawyer not to review the communication and to return or destroy it on request. It adds, however, that a lawyer may still choose, after considering Rules 1.2 and 1.4, to act consistently with 2003-04 (for example, by not reviewing or by destroying the document) without thereby violating Rule 4.4(b).

In practice

The opinion holds that, under the New York rule as it stood at the time, the receiving lawyer's only mandatory step on recognizing an inadvertently sent document is prompt notice to the sender; the rule does not require sequestering, returning, destroying, or declining to read the document, and it does not address metadata. Per the opinion, substantive law and court rules (which the committee does not interpret) may independently affect the lawyer's use of the material, and the lawyer remains free to choose a more protective course in consultation with the client.

Common questions

Q: I just got an email clearly meant for someone else. What must I do?

A: The opinion concludes that if you know or reasonably should know it was sent inadvertently, Rule 4.4(b) requires you to promptly notify the sender. That is the only step the New York Rules require.

Q: Do I have to delete it or refrain from reading it?

A: Not as a matter of the New York Rules. The opinion withdraws the prior Opinion 2003-04's stricter requirements; you may, however, choose to return or not review the document, and substantive law may impose consequences (such as disqualification) for reading privileged material.

Q: Does the rule cover emails and voicemails, not just paper?

A: Yes. The opinion reads "document" to include email, voicemail, and other electronically stored information that can be read or transcribed.

Q: What about metadata in a received file?

A: The opinion expressly does not address metadata, noting it can raise distinct ethical questions for sender and recipient outside the scope of Rule 4.4(b) and this opinion.

Background and rules framework

The opinion interprets New York Rule 4.4(b) (respect for the rights of third persons; inadvertently sent documents; Model Rule 4.4(b)), against the ordinary truthfulness duties of Rules 4.1 and 8.4 and the client-consultation duties of Rules 1.2 and 1.4. It relies on the NYSBA comments to Rule 4.4 and withdraws part of NYC Bar Opinion 2003-04.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.4(b) / NY RPC 4.4(b) (notice on receipt of an inadvertently sent document)
• Model Rules 1.2, 1.4 / NY RPC 1.2, 1.4 (client decisions and consultation on use)

Cases:

• Lipin v. Bender, 193 A.D.2d 424 (1st Dep't 1993), disqualification for use of improperly obtained documents

Other opinions cited:

• NYC Bar Formal Op. 2003-04 (withdrawn in part): receiving lawyer's duties under the former Code
• NYSBA Ethics Op. 782 (2004): metadata, noted as outside this opinion's scope

See also

• NYC Bar Ethics Op. 2019-3: Use of information inadvertently disclosed
• ABA Formal Op. 06-442: Review and use of metadata
• ABA Formal Op. 11-460: Receiving a third party's email with counsel

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2012-01-inadvertent-disclosure-of-documents/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20072273-FormalOpinion2012-01InadvertentDisclosureofDocuments.pdf