What should a lawyer do after receiving confidential deposition transcripts that were not meant for the lawyer?
Apply this to your situation
This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer received copies of deposition transcripts. Although the lawyer's client was not a signatory to the agreement, the participants had agreed to keep the deposition transcripts confidential. The lawyer asked whether to return the transcript to the mediator without looking at it, whether there was a duty to share the document with the client, whether the lawyer could use the contents in accordance with the rules of evidence, and whether the lawyer had a duty to notify the mediator or other parties that it had been sent to the lawyer.
The committee concluded that the Rules of Professional Conduct do not address this issue. In view of the lack of guidance from the RPCs and the lack of consensus in other jurisdictions, the committee recommended that the lawyer review the guidance in ABA Formal Opinion 94-382. The committee noted that, while not binding, that opinion affords a set of guidelines for the recipient as well as the adverse lawyer.
Currency note
This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's cited rules correspond to ABA Model Rules 1.1 (competence), 1.3 (diligence), and 8.4 (misconduct). Many jurisdictions have since adopted a specific rule on inadvertently sent documents (Model Rule 4.4(b)); verify the current rule before relying on this opinion.
Common questions
Q: Do the Washington RPCs say what to do with a confidential document received by mistake?
A: The committee concluded the Rules of Professional Conduct do not address the issue.
Q: What guidance did the committee point to instead?
A: It recommended reviewing ABA Formal Opinion 94-382, which, though not binding, offers guidelines for both the recipient and the adverse lawyer.
Q: Did the committee decide whether the lawyer must return or may use the documents?
A: No. Rather than resolve the return, disclosure, or use questions under the RPCs, the committee deferred to the ABA opinion's guidelines given the absence of an on-point rule.
Background and rules framework
The opinion listed RPC 1.1 (competence), RPC 1.3 (diligence), and RPC 8.4(c) and (d) (misconduct) as the applicable rules, corresponding to ABA Model Rules 1.1, 1.3, and 8.4. The committee found that those rules do not resolve the receipt of misdirected confidential documents and, citing the absence of consensus in other jurisdictions, directed the inquirer to ABA Formal Opinion 94-382.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.1 (competence); Washington RPC 1.1
- ABA Model Rule 1.3 (diligence); Washington RPC 1.3
- ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(c), 8.4(d)
Other opinions cited:
- ABA Formal Opinion 94-382: guidelines for a lawyer who receives an opposing party's confidential or privileged materials.
See also
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=843
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1779
Year Issued: 1997
RPC(s): RPC 1.1; 1.3; 8.4(c); 8.4(d); ABA Formal Opinion 94-382
Subject: Confidentiality; misdirected documents received from opposing counsel
Facts Presented: Lawyer received copies of deposition transcripts. Although the lawyer's client is not a signatory to the agreement, the participants agreed to keep the deposition transcripts confidential.
Questions Presented: (1) Should the lawyer return the deposition transcript to the mediator without looking at it? (2) Does the lawyer have a duty to share the document with the client? (3) May the lawyer use the contents of the document in accordance with the rules of evidence? (4) If the client has the right to keep the document, does the lawyer have a duty to notify the mediator or the other parties that it was sent to the lawyer?
Applicable Rules: RPC 1.1, 1.3, 8.4(c) and (d).
RPC Committee: The Rules of Professional Conduct do not address this issue. In view of the lack of guidance from the RPCs, and the lack of consensus in other jurisdictions, the Committee recommends that you review the guidance contained in ABA Formal Opinion 94-382. While not binding, it does afford a set of guidelines for the recipient, as well as the adverse lawyer.
Get today's answer for your situation
You just read a 1997 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.