When a lawyer receives a document the other side sent by mistake, can the lawyer use it, or only notify the sender?
Apply this to your situation
This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses a lawyer who, after receiving and reviewing a document relating to the lawyer's representation, knows or reasonably should know it was sent inadvertently. It concludes Rule 4.4(b) requires the lawyer to promptly notify the sender so the sender can seek the document's return or other legal recourse before the recipient tries to use it.
The opinion concludes that Rule 4.4(b) does not address, and does not by itself prohibit, the receiving lawyer's disclosure or use of the information for the client. Substantive law, procedural rules, judicial decisions, court orders, and agreements between the parties typically impose the additional obligations or restrictions on use.
Where using the information would reasonably advance the client's objectives and the law permits it, the opinion concludes Rules 1.2(a) and 1.4 direct the lawyer to consult the client about the risks and benefits, and the client's desire to use the information should be treated as controlling when failing to use it would breach the Rule 1.1(c) duty to seek the client's objectives by reasonably available lawful means or would prejudice the client's rights under Rule 1.2(e). That determination may depend on whether the same information is reasonably available from independent sources and at what time and expense. If Rules 1.1(c) and 1.2(e) do not require use, the lawyer may refrain. Where the information's significance or the governing law is unclear, the opinion concludes the lawyer may refrain from using it even over the client's objection, and a fundamental disagreement over use may permit or require withdrawal.
In practice
Under this opinion, as the New York rules stood at the time, the notification duty and the use question are separate. The opinion holds the lawyer must promptly notify the sender under Rule 4.4(b), but that rule does not decide whether the lawyer may use the information. The opinion holds use is governed by other law plus the Rule 1.2(a)/1.4 duty to consult the client, with the client's decision generally controlling where the law permits use, except that the lawyer may decline to use the information when its significance or the governing law is unclear, even over the client's objection.
Common questions
Q: If opposing counsel emails me a privileged document by mistake, what must I do first?
A: Notify the sender promptly. The opinion concludes Rule 4.4(b) requires a lawyer who knows or reasonably should know a document was inadvertently sent to promptly notify the sender so the sender can seek its return.
Q: Does Rule 4.4(b) forbid me from using the information?
A: No. The opinion concludes Rule 4.4(b) does not itself prohibit using inadvertently sent information; restrictions, if any, come from substantive law, procedural rules, court orders, or party agreements.
Q: Does my client get to decide whether to use it?
A: Generally yes, where the law permits use. The opinion concludes Rules 1.2(a) and 1.4 require consulting the client, and the client's decision to use the information should be treated as controlling when not using it would violate Rule 1.1(c) or prejudice the client under Rule 1.2(e).
Q: Can I refuse to use it even if the client wants to?
A: Sometimes. The opinion concludes that where the information's significance or the governing law is unclear, the lawyer may refrain from using it even over the client's objection, and a fundamental disagreement may permit or require withdrawal.
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 4.4(b) (a lawyer's duty on receiving an inadvertently sent document, analogous to Model Rule 4.4(b)), read together with Rule 1.1 (competence, including Rule 1.1(c)), Rule 1.2 (scope of representation, including Rule 1.2(a) and 1.2(e)), Rule 1.4 (communication), and Rule 1.16 (withdrawal). The opinion situates its analysis against NYCLA Formal Opinion 730 (2002) and ABA Formal Opinion 92-368, earlier treatments of inadvertently disclosed materials.
Citations and references
Rules of Professional Conduct:
- NY RPC 4.4(b) (duty on receiving an inadvertently sent document)
- NY RPC 1.1, 1.1(c) (competence; seeking the client's objectives)
- NY RPC 1.2, 1.2(a), 1.2(e) (scope; not prejudicing the client)
- NY RPC 1.4 (communication); NY RPC 1.16 (withdrawal)
- MR 4.4(b), MR 1.2, MR 1.4 (Model Rule analogues)
Other opinions cited:
- NYCLA Formal Op. 730 (2002): obligations on receipt of inadvertently disclosed privileged information
- ABA Formal Op. 92-368: receipt of inadvertently disclosed materials
See also
- ABA Formal Op. 05-437: Inadvertent disclosure of confidential materials
- ABA Formal Op. 06-440: Unsolicited receipt of privileged materials
- ABA Formal Op. 06-442: Review and use of metadata
Source
Get today's answer for your situation
You just read a 2019 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.