Bar Counsel Notes: Inadvertent Disclosure


Attorney's office receives a letter that was actually written and addressed by the opposing counsel (X) in a pending family matter to her own client. The receptionist that had sorted the Attorney's mail failed to notice that although the envelope had been addressed to the Attorney, the letter was not. As a result of that failure, the letter was forwarded to the Attorney's administrative assistant (S). S catches the error, informs the Attorney of the situation without giving him the document and asks for direction. How should the Attorney respond to S?


The applicable rule is M. R. Prof. Conduct 4.4(b) (Inadvertent Disclosures). Under that rule, the Attorney must instruct S to discontinue reading the privileged letter, immediately notify X that S had inadvertently received the letter. Once that communication has occurred, S should destroy the letter immediately and prepare a memorandum to the file about the event and how it had been handled.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.