If a lawyer receives a privileged document the other side sent by mistake, do the ethics rules require returning it unread?

Plain-English summary

Lawyer A inadvertently includes a privileged document in a set of documents produced to Lawyer B in discovery. Lawyer A discovers the mistake, calls Lawyer B, and asks Lawyer B to return the document without examining it further. The opinion asks whether Lawyer B must return the document, and answers no, qualified.

The opinion applies Oregon RPC 4.4(b), which provides that a lawyer who receives a document or electronically stored information relating to the representation, and knows or reasonably should know it was inadvertently sent, must promptly notify the sender. By its terms, the opinion explains, the rule does not require the recipient to return the original, nor does it prohibit the recipient from openly claiming and litigating the right to retain the document where there is a nonfrivolous basis to do so. The rule's purpose is to let the sender take protective measures, such as seeking a court order for return. Whether the lawyer must do anything beyond notifying the sender, such as return the document, is a legal matter beyond the scope of the RPCs, with waiver of privilege by inadvertent disclosure a preliminary question for the court (Goldsborough v. Eagle Crest Partners).

The opinion adds several points of scope: Oregon RPC 4.4(b) does not distinguish litigation from non-litigation situations, is not limited to information protected by Oregon RPC 1.6, is not limited to documents sent by another lawyer, applies to a document's hidden metadata (citing OSB Formal Ethics Op. No. 2011-187), and applies whether or not the recipient read the document before learning it was inadvertently sent. It cautions, however, that if applicable court rules, stipulations, orders, or substantive law require a lawyer to return documents or stop reading them upon realizing they were inadvertently produced, a lawyer who fails to comply could face discipline or disqualification on other grounds (citing Oregon RPC 3.3(a)(5), 3.4(c), 8.4(a)(4), and Richards v. Jain). Finally, where the delivery results from circumstances other than the sender's inadvertence, Oregon RPC 4.4(b) does not apply (citing OSB Formal Ethics Op. No. 2011-186 and ABA Formal Ethics Op. No. 06-440).

In practice

This opinion was issued in 2015, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but readers should confirm the current framework before relying on it. The opinion holds that, under Oregon RPC 4.4(b) as it stood at the time, the recipient's only ethics duty is prompt notice to the sender; return, destruction, or continued reading is a matter of professional judgment and of any separately applicable court or substantive law. Per the opinion, the analysis turns on whether the sending was inadvertent (rule applies, notice required) versus from other circumstances (rule does not apply), and on whether outside law imposes a return obligation. Verify the current text of Oregon RPC 4.4 before relying on any specific point.

Common questions

Q: Must a lawyer return a privileged document the other side produced by mistake?

A: Not under the ethics rules alone. The opinion concludes Oregon RPC 4.4(b) requires only prompt notice to the sender; it does not require return or prohibit litigating the right to retain the document on a nonfrivolous basis.

Q: Does Rule 4.4(b) cover metadata and non-litigation situations?

A: Yes. The opinion states the rule applies to hidden metadata, does not distinguish litigation from non-litigation, is not limited to Rule 1.6 information, and is not limited to documents sent by another lawyer.

Q: Could the lawyer still be required to return the document?

A: Yes, on other grounds. The opinion notes that court rules, stipulations, orders, or substantive law may require return or cessation of reading, and failing to comply could lead to discipline or disqualification.

Q: What if the document was leaked rather than sent by mistake?

A: Then Rule 4.4(b) does not apply. The opinion states that where delivery results from circumstances other than the sender's inadvertence, Oregon RPC 4.4(b) does not govern.

Background and rules framework

The opinion interprets Oregon RPC 4.4(b) (duties on receiving an inadvertently sent document), corresponding to Model Rule 4.4(b) and its Comments [2] and [3]. It situates the rule against the rule that privilege waiver by inadvertent disclosure is decided by the court, and against other rules (Oregon RPC 3.3, 3.4, 8.4) that may apply where outside law imposes a return obligation.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.4(b) / Model Rule 4.4(b) (notice on receiving an inadvertently sent document)

Cases:

• Goldsborough v. Eagle Crest Partners, Ltd., 314 Or 336, 838 P2d 1069 (1992) (waiver by inadvertent disclosure is for the court)
• Richards v. Jain, 168 F Supp 2d 1195 (WD Wash 2001) (disqualification for retaining and using privileged materials)

Other opinions cited:

• OSB Formal Ethics Op. No. 2011-187 (rev 2015) (metadata)
• OSB Formal Ethics Op. No. 2011-186 (rev 2015) (non-inadvertent delivery)
• ABA Formal Ethics Op. No. 06-440

See also

• OSB Ethics Op. 2005-141: Recycling Documents That Contain Client Information
• OSB Ethics Op. 2005-104: Confidentiality and the Self-Defense Exception
• OSB Ethics Op. 2005-96: Notarial Journals and Client Confidentiality

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-150.pdf