If a public agency inadvertently sends a lawyer privileged material in response to a public records request, what must the lawyer do?

Plain-English summary

A lawyer using a public records request to gather information from a public agency may receive material the agency did not intend to disclose, such as documents protected by the attorney-client privilege that slipped past the agency's redaction review. The Board addresses what the lawyer must do under Prof.Cond.R. 4.4(b).

The opinion concludes that Prof.Cond.R. 4.4(b) requires the lawyer to promptly notify the agency when the lawyer knows or reasonably should know that information related to the representation of a client was inadvertently sent. The Board notes the rule does not distinguish between litigation and non-litigation settings, and the duty applies even though the records request preceded any litigation. The point of notice, per the opinion, is to let the sender take protective measures, such as asking for the material's return or destruction, or later moving to suppress its use.

On the lawyer's own conduct, the opinion holds that Prof.Cond.R. 4.4(b) is silent beyond the notice requirement. There is no ethical obligation to refrain from reading the material or from sharing it with the client, and a lawyer exposed to information before knowing it was inadvertently sent is not barred from using it. The Board relies on ABA Formal Opinions 05-437 and 06-442 for the conclusion that the rule's sole requirement is notice. The opinion adds that if the agency obtains a court order governing the material's use, return, or destruction during litigation, failing to comply could implicate Prof.Cond.R. 3.4(c) or 8.4(d). It also notes that whether the privilege is waived is a legal question outside the scope of the rules.

In practice

Under this opinion, an Ohio lawyer who receives inadvertently disclosed, representation-related material in a public records response has one mandatory step under the rules: prompt notice to the sending agency once the lawyer knows or reasonably should know the disclosure was inadvertent. The opinion treats whether to retain, preserve, return, or destroy the material as a matter left to the lawyer's professional judgment, not a rule command.

The opinion also identifies the limits of that latitude. If litigation follows and a court orders the lawyer to stop reviewing, return, or destroy the material, disobeying that order could violate Prof.Cond.R. 3.4(c) (disobeying a tribunal's rules) or 8.4(d) (conduct prejudicial to the administration of justice). The opinion further notes that communicating the receipt to the client may be required under Prof.Cond.R. 1.4 so the client can decide how to proceed.

Common questions

Q: Does an Ohio lawyer have to tell a public agency it accidentally disclosed privileged material?

A: Yes. The opinion concludes that Prof.Cond.R. 4.4(b) requires prompt notice to the sender once the lawyer knows or reasonably should know the material relating to a client's representation was inadvertently sent.

Q: Can the lawyer read the material and use it?

A: Per the opinion, Prof.Cond.R. 4.4(b) imposes no obligation to refrain from reading the material or sharing it with the client, and a lawyer who saw it before realizing it was inadvertent is not barred from using it. The rule's only command is notice.

Q: Does it matter that the request was made before any lawsuit?

A: No. The opinion states the duty to notify applies even when the public records request was made before litigation and regardless of whether the information relates to a client's representation.

Q: What if a court later orders the lawyer to return or stop using the material?

A: The opinion says a lawyer who fails to comply with such a court order could implicate Prof.Cond.R. 3.4(c) or 8.4(d).

Q: Does the opinion decide whether the privilege is waived?

A: No. The Board states that whether the privileged status is waived is a matter of law beyond the scope of the Rules of Professional Conduct and the opinion.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 4.4(b) (Model Rule 4.4(b)), which directs a lawyer who receives a document or electronically stored information relating to the representation of a client, and who knows or reasonably should know it was inadvertently sent, to promptly notify the sender. It draws on Comment [2] to Rule 4.4 for the meaning of "inadvertently sent" and for the point that further steps are left to the lawyer's judgment. It also references Prof.Cond.R. 1.4 (communication with the client; Model Rule 1.4) and Prof.Cond.R. 3.4(c) and 8.4(d) for the consequences of disobeying a related court order.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.4(b) / Ohio Prof.Cond.R. 4.4(b) (inadvertently sent material; duty to notify)
• Model Rule 1.4 / Ohio Prof.Cond.R. 1.4(a)(2), 1.4(b) (communication with the client)
• Model Rule 3.4(c) / Ohio Prof.Cond.R. 3.4(c) (disobeying a tribunal's rules)
• Model Rule 8.4(d) / Ohio Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice)

Statutes:

• R.C. 149.43 (Ohio Public Records Act)

Cases:

• Gilbert v. Summit County, 2004-Ohio-7108 (public agency may not refuse a records request by a litigant because discovery was denied in litigation)
• State ex rel. Davis v. Metzger, 2014-Ohio-2329 (careful review needed to redact non-qualifying information)

Other opinions cited:

• ABA Formal Op. 05-437: the receiving lawyer need not refrain from examining the materials or abide by the sender's instructions
• ABA Formal Op. 06-442: review and use of metadata; notice is the rule's sole requirement
• N.Y. Eth. Op. 2012-1 and NYC Ethics Op. 2003-04: rationale for prompt notice and use of material seen before notice

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

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2024/10/Adv.-Op.-2024-05-Board-Final.pdf

Original opinion text

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

OPINION 2024-05
Issued October 4, 2024
Withdraws Adv. Op. 1993-11

Lawyer's Receipt of Inadvertently Sent Information Obtained Through Public Records Request

SYLLABUS: A lawyer who submits a records request to a public agency is required to notify the agency if the lawyer knows or reasonably knows the agency's response includes information related to representation of a client that was inadvertently sent to the lawyer. There is no ethical obligation for the lawyer to refrain from reviewing the inadvertently sent information, sharing the information with the lawyer's client, or communicating with the lawyer's client about the receipt of the information.

APPLICABLE RULES: Prof.Cond.R. 1.4, 3.4, 4.4, 8.4

QUESTIONS PRESENTED:

1). Whether a lawyer has an ethical obligation to notify the sender of information related to the representation of a client that was inadvertently sent to the lawyer in response to a public records request.

2). Whether a lawyer has an ethical obligation to refrain from reading information related to the representation of a client or sharing the information with the lawyer's client when the information was inadvertently sent to the lawyer in response to a public records request.

ANALYSIS:

Receipt of inadvertently disclosed information

Lawyers pursuing certain types of litigation against a public agency may choose to utilize public records requests to obtain information from the agency prior to or during litigation. See e.g., Gilbert v. Summit County, 2004-Ohio-7108 (public agency may not refuse public record request by litigant on ground that discovery was denied by court order in litigation against the agency.) The public agency may review the requested records, prior to being made available, to determine if any records are exempt from disclosure under R.C. 149.43 (Ohio Public Records Act), including records that contain information protected by the attorney-client privilege. State ex rel. Davis v. Metzger, 2014-Ohio-2329, ¶10 (certain files require careful review to redact information that does not document the organization or functions of the agency.) Despite a public agency's review and redaction of records when fulfilling a public records request, information may be inadvertently sent that is beyond the scope of the request.

The questions presented are addressed by Prof.Cond.R. 4.4(b):

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Information is deemed to have been inadvertently sent "when it is * * * accidentally included with information that was intentionally transmitted." Prof.Cond.R. 4.4, cmt.[2]. The rule does not distinguish between situations involving litigation and those that do not, nor is application of the rule limited to information related to the representation of a client.

Duty to notify the sender

Under the questions presented, a lawyer is obligated under Prof.Cond.R. 4.4(b) to promptly notify the public agency of the receipt of information related to the representation of a client when the lawyer knows or reasonably knows that the information was inadvertently sent. For instance, a document or electronically stored information marked as privileged, or communication between a lawyer and client, clearly indicates that the sender did not intend for it to be transmitted. This obligation is imposed on the lawyer even though the public records request was made prior to the litigation and regardless of whether the information is related to the representation of a client.

The requirement of prompt notification permits the sender to take protective measures to eliminate any unfair advantage that may be obtained by the recipient lawyer. N.Y. Eth. Op. 2012-1. For example, the public agency may alert its lawyer of the issue in order for the lawyer to decide to request a return or destruction of the information, or to later seek to suppress the use or admission of the information in litigation. Whether the lawyer is unilaterally required to take additional steps after notification, such as retaining, preserving, returning, or destroying the information is not addressed by the rule and is a decision that is left to the professional judgment of the lawyer. Prof.Cond.R. 4.4(b), cmt. [2]. "[T]he sole requirement of providing notice to the sender of the receipt of inadvertently sent information [is] evidence of the intention to set no other specific restrictions [in the rule] on the receiving lawyer's conduct." ABA Formal Op. 06-442.

Neither Prof.Cond.R. 4.4(b) nor this advisory opinion addresses the question of whether the privileged status of inadvertently transmitted information via a response to a public records request is waived. This question is a matter of law and beyond the scope of the Rules of Professional Conduct and this opinion.

Review or use of information contained in document

Prof.Cond.R. 4.4(b) is silent as to the obligations of the lawyer beyond notification to the sender of the inadvertently transmitted information. Consequently, there is no ethical obligation imposed under the Rules of Professional Conduct upon the recipient lawyer to refrain from reading or reviewing the information or sharing its contents with the client. When a lawyer has been exposed to information before knowing or having reason to know it was inadvertently transmitted, a lawyer is not barred under the rule from using the information. NYC Ethics Op. 2003-04. The ABA has similarly concluded that Prof.Cond.R. 4.4(b), "does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer." ABA Formal Opinion 05-437.

Upon notification of inadvertently sent information during litigation, the public agency may attempt to seek relief from a court concerning its use, return, and/or destruction. Under such circumstances, the lawyer or the lawyer's client may be subject to a court order to avoid further review of the information, its return to the sender, or its destruction. A lawyer's failure to comply with the court order could implicate Prof.Cond.R. 3.4(c) (disobeying an obligation under the rules of a tribunal) or Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice.)

Communication with Client

A lawyer in possession of inadvertently sent information related to the representation of a client through a public records request may communicate receipt of the information to the lawyer's client. This may necessitate further discussion with the client about how the client's objectives may be pursued by any future use of the information, its destruction, or its return to the sender. Prof.Cond.R. 1.4(a)(2). The lawyer should explain during the discussion with the client the implications of receiving the inadvertently sent information and whether its use in litigation may be subject to Rules of Evidence, Rules of Civil Procedure, judicial orders, or law. Prof.Cond.R. 1.4(b).