If I receive the opposing party's confidential information, whether a client stole it or it was sent to me by mistake, do the Texas rules require me to notify opposing counsel?
Texas Ethics Opinion 664: Duties on Receiving an Opposing Party's Confidential Information
Short answer: Per the Committee, because Texas has not adopted ABA Model Rule 4.4(b), a lawyer who receives the opposing party's confidential information (whether a client took it without consent or it was sent inadvertently) does not automatically violate the Texas rules by failing to notify opposing counsel; depending on the facts, inaction could implicate rules on criminal or fraudulent conduct, candor, and dishonesty, and prompt notice can matter for procedural disqualification under In re Meador.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses two situations: a client takes confidential information from the opposing party (here, the client's former employer) without consent and gives it to the lawyer, who was unaware of the client's actions; and a lawyer inadvertently receives the opposing party's confidential information outside the normal course of discovery. In both, the information is relevant and favorable to the client. The question is whether failing to notify the opposing party or its counsel violates the Texas rules.
The Committee discusses In re Meador, 968 S.W.2d 346 (Tex. 1998), a procedural-disqualification case with similar facts. The court of appeals had cited ABA Formal Opinion 94-382, which advised a lawyer who receives an adversary's information from an unauthorized source to stop reviewing it, notify the adversary's lawyer, and follow instructions or await a court ruling. The Texas Supreme Court agreed that approach is the standard "to which attorneys should aspire," but held no specific Texas disciplinary rule applied and declined to adopt the ABA procedure as a disciplinary standard; it also noted disciplinary rules are only guidelines for disqualification, so a rule violation is neither essential to nor automatically requires disqualification. The court announced six factors for deciding such disqualification motions, including the promptness of notice. The opinion notes the ABA withdrew Formal Opinion 94-382 in 2006 after adopting Model Rule 4.4(b) (see ABA Formal Opinion 06-440), which requires prompt notice of inadvertently sent documents.
The Committee concludes that because Texas has not adopted Rule 4.4(b) or any rule directly addressing this situation, a Texas lawyer who fails to notify opposing counsel does not necessarily or automatically violate the rules, and the answer is the same whether the information was obtained without authorization or inadvertently. It cautions that in particular circumstances inaction might violate rules requiring truthfulness or barring assistance to criminal or fraudulent acts, citing Rule 1.02(c), Rule 3.03(a)(2), Rule 4.01(b), and Rule 8.04(a)(3); whether any applies depends on the facts and the law. Where those rules do not apply, the required steps are a matter of general law outside the disciplinary rules. The Committee adds that a lawyer's conduct can have material consequences for the client, including procedural disqualification, and that under Rule 1.03(b) the lawyer should discuss the risks, benefits, and recommended course of action with the client.
In practice
Under this opinion, and under the Texas rules as they stood at the time of the opinion, a Texas lawyer who receives an opposing party's confidential information outside discovery, whether taken without consent or sent inadvertently, is not automatically required by the disciplinary rules to notify opposing counsel, because Texas has not adopted Model Rule 4.4(b). The opinion holds that inaction could still violate Rules 1.02(c), 3.03(a)(2), 4.01(b), or 8.04(a)(3) depending on the facts and applicable law, that other steps may be governed by general law and tribunal rules, and that the lawyer should explain the possible responses and their consequences to the client under Rule 1.03(b), keeping in mind that promptness of notice is a Meador disqualification factor.
Common questions
Q: My client handed me documents he took from his former employer (the opposing party). Must I tell opposing counsel?
A: Per Opinion 664, the Texas rules do not automatically require it; because Texas has not adopted Model Rule 4.4(b), failing to notify is not by itself a rule violation, though depending on the facts other rules on criminal/fraudulent assistance, candor, and dishonesty could apply.
Q: Is the answer different if the documents were sent to me by mistake instead of stolen?
A: No. The opinion states the answer is the same whether the information was obtained in an unauthorized manner or inadvertently.
Q: Are there still reasons to give notice even if the rules don't require it?
A: Yes. The opinion notes that promptness of notice is one of the Meador factors a court weighs in a procedural-disqualification motion, so a lawyer's choice can have material consequences for the client; under Rule 1.03(b) the lawyer should discuss the options and consequences with the client.
Background and rules framework
The opinion addresses the absence of a Texas counterpart to ABA Model Rule 4.4(b) (respect for the rights of third persons; notice of inadvertently sent documents), and notes ABA Formal Opinions 94-382 (withdrawn) and 06-440. It identifies Texas rules that could apply depending on the facts: Rule 1.02(c) (assisting criminal or fraudulent conduct), Rule 3.03(a)(2) (candor to a tribunal), Rule 4.01(b) (truthfulness to third persons), Rule 8.04(a)(3) (dishonesty, fraud, deceit, or misrepresentation; ABA Model Rule 8.4(c)), and Rule 1.03(b) (keeping the client informed; ABA Model Rule 1.4).
Citations and references
Rules of Professional Conduct:
- MR 4.4 (respect for rights of third persons; inadvertently sent documents)
- MR 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)
- Texas Disciplinary Rules 1.02(c), 3.03(a)(2), 4.01(b), 8.04(a)(3), 1.03(b)
Cases:
- In re Meador, 968 S.W.2d 346 (Tex. 1998)
Other opinions cited:
- ABA Formal Opinion 94-382 (1994) (withdrawn 2006): unsolicited receipt of privileged or confidential materials
- ABA Formal Opinion 06-440 (2006): withdrawing 94-382 after the adoption of Model Rule 4.4(b)
See also
- ABA Formal Op. 06-440: Unsolicited Receipt of Privileged Materials
- ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
- ABA Formal Op. 11-460: Receiving a Third Party's Email With Counsel
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-664/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_664.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party's knowledge or consent?
Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?
STATEMENT OF FACTS
In one situation, Client A takes confidential information from the opposing party, Client A's former employer, without the former employer's knowledge or consent. Client A gives the information to Client A's lawyer, who was uninvolved in and previously unaware of Client A's actions. In a second situation, Client A's lawyer inadvertently receives confidential information belonging to the opposing party outside the normal course of discovery. In each situation, the confidential information is relevant and favorable to Client A's case.
DISCUSSION
In this opinion, "confidential information" refers to any private information, including but not limited to privileged information, obtained from the opposing party or the opposing party's lawyer in an unauthorized manner or as a result of an inadvertent transfer.
The facts of the first situation are similar to those in In re Meador, 968 S.W.2d 346 (Tex. 1998), a procedural disqualification case. The term "procedural disqualification" refers to a tribunal's decision to disqualify counsel in a particular proceeding. Although courts refer to the Texas Disciplinary Rules of Professional Conduct as guidelines for deciding questions of procedural disqualification, a violation of the Texas Disciplinary Rules is neither essential to, nor automatically requires, procedural disqualification. Meador, 968 S.W.2d at 350-51. In contrast, a Texas lawyer is only subject to professional discipline by the State Bar of Texas if the lawyer violates one or more of the Texas Disciplinary Rules.
In Meador, an employee of the defendant, covertly and without authorization, copied privileged information of the defendant-employer and gave the information to the plaintiff and her counsel. When the theft was discovered, the trial court ordered the plaintiff and her counsel to return the information and not use it in the litigation. However, the trial court refused to disqualify plaintiff's counsel. Id.
The defendant sought and obtained mandamus relief from the court of appeals. The court of appeals cited American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 94-382 (1994) for the appropriate standard of conduct. ABA Formal Opinion 94-382, entitled "Unsolicited Receipt of Privileged or Confidential Materials," states a lawyer who receives from an unauthorized source information of an adverse party should, upon realizing its confidential or privileged nature, 1) refrain from further reviewing it; 2) notify the adversary's lawyer of the receipt of the information; and 3) either follow the adversary's instructions regarding the information or refrain from using the information until a court rules on its proper disposition.
The Texas Supreme Court reversed. The Court agreed that ABA Formal Opinion 94-382 "represents the standard to which attorneys should aspire in dealing with an opponent's privileged information," stating that "[t]he ABA's approach reflects the importance of the discovery privileges, and ensures that the harm resulting from an unauthorized disclosure of privileged information will be held to a minimum." Meador, 968 S.W.2d at 351. But the Court noted that "no specific Texas disciplinary rule applies to the circumstances of this case," and expressly stopped short of adopting the procedure prescribed by ABA Formal Opinion 94-382 as a disciplinary standard for Texas lawyers. Id. at 350-51. The Court further observed that disciplinary standards serve only as guidelines for procedural disqualification, so that a violation of the Texas Disciplinary Rules of Professional Conduct is neither essential to, nor automatically requires, procedural disqualification. Id.
The Texas Supreme Court announced six factors to be applied in deciding procedural disqualification motions arising from a lawyer's unauthorized receipt of another party's privileged materials:
"1) whether the attorney knew or should have known that the material was privileged;
2) the promptness with which the attorney notifies the opposing side that he or she has received its privileged information;
3) the extent to which the attorney reviews and digests the privileged information;
4) the significance of the privileged information; i.e., the extent to which its disclosure may prejudice the movant's claim or defense, and the extent to which return of the documents will mitigate that prejudice;
5) the extent to which movant may be at fault for the unauthorized disclosure; [and]
6) the extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney."
Meador, 968 S.W.2d at 351-52.
Although the Texas Supreme Court has not withdrawn its comment that "attorneys should aspire" to the procedure outlined in ABA Formal Opinion 94-382, the ABA Standing Committee on Ethics and Professional Responsibility withdrew that Opinion in 2006, following the adoption of ABA Model Rule of Professional Conduct 4.4(b). See ABA Formal Opinion 06-440 (2006). ABA Model Rule 4.4(b) now provides:
"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."
The question now before the Committee is whether Texas lawyers violate the Texas Disciplinary Rules of Professional Conduct by failing to notify opposing counsel upon receipt of an opposing party's confidential information outside the normal course of discovery. As the Texas Supreme Court noted in Meador, the Texas Disciplinary Rules do not contain a rule addressing the appropriate standard of conduct when a lawyer receives an opposing party's confidential information obtained in an unauthorized manner. Nor has Texas adopted a version of ABA Model Rule 4.4(b) or any other rule that directly addresses a lawyer's duties upon receipt of inadvertently sent confidential information. As a consequence, a Texas lawyer who fails to provide notice to opposing counsel upon receipt of an opposing party's confidential information outside the normal course of discovery does not necessarily or automatically violate the Texas Disciplinary Rules. The answer is the same whether the information is obtained in an unauthorized manner or inadvertently.
It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent's confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process. For example, Rule 1.02(c) prohibits a lawyer from assisting or counseling "a client to engage in conduct that the lawyer knows is criminal or fraudulent." Rule 3.03(a)(2) prohibits a lawyer from knowingly failing "to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act." Rule 4.01(b) provides a lawyer shall not knowingly "fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client." Rule 8.04(a)(3) states a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." In the view of the Committee, however, whether a lawyer's failure to act violates one of these rules will depend on the facts and the applicable law in a given situation. If these Rules do not come into play in a particular situation, the steps a lawyer must take once another party's confidential information is acquired is a matter of general law outside the scope of the Texas Disciplinary Rules of Professional Conduct.
The Committee cautions that a lawyer's conduct upon receipt of another party's confidential information may have material consequences for the client, including the possibility of procedural disqualification. In the Meador scenario, for example, one factor that the trial court is to consider in deciding a procedural disqualification motion is the promptness with which the lawyer notified the opposing counsel of the circumstances. A lawyer in receipt of another party's confidential information should therefore discuss with the client the risks and benefits of possible courses of action and any recommendation of the lawyer. See Rule 1.03(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.").
A lawyer should always endeavor to comply with the requirements of the applicable law and the rules of the governing tribunal. But a failure to comply with general law or court rules is not always a violation of the Texas Disciplinary Rules of Professional Conduct that subjects a lawyer to professional discipline. Because the Texas Disciplinary Rules are silent regarding the duty of a lawyer who receives an opponent's confidential information, a lawyer who thereafter fails to notify the opposing party does not necessarily violate those Rules.
CONCLUSION
The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party's confidential information outside the normal course of discovery. Although the Texas Supreme Court has stated that, upon the unauthorized receipt of such information, a lawyer should aspire to the standard of conduct prescribed by now-withdrawn ABA Formal Opinion 94-382, a Texas lawyer does not necessarily violate the Texas Disciplinary Rules of Professional Conduct by failing to follow that standard, including the requirement that the lawyer give notice of the receipt of such information to the opposing party. In a given situation a lawyer's failure to take action upon the unauthorized or inadvertent receipt of another party's confidential information might violate one or more of the Texas Disciplinary Rules dealing with criminal, fraudulent, dishonest, deceitful and misleading conduct. Whether such a violation occurs will depend on the specific facts of each situation, the applicable law, and the rules of the governing tribunal. In determining the course of action to take in response to the receipt of another party's confidential information, a lawyer should explain to the client the possible responsive actions and the potential consequences of those actions.
Tex. Comm. On Professional Ethics, Op. 664 (2016)