Opinion #146. Obligation to Return Inadvertently Disclosed Privileged Documents

Issued by the Professional Ethics Commission

Date Issued: December 9, 1994

Facts

Pursuant to Maine Bar Rule 11(c)(l), Bar Counsel has requested an opinion based on the following set of facts.

Counsel A and Counsel Z represented adverse parties in a lawsuit. In the course of pretrial discovery, Counsel Z received a number of documents from Counsel A. Among those items was a copy of a document that is clearly privileged. According to the facts posed by Bar counsel, Counsel Z knew or should have known1 that the disclosure of the document was inadvertent.

Questions

Bar counsel poses the following questions:

  1. May Counsel Z use the privileged memorandum or the information in the privileged memorandum in representing her client and if so to what extent?
  2. Must Counsel Z notify Counsel A of his error?

Opinion

At the outset, we note that the discoverability and admissibility of the document in question are governed by the Rules of Civil and Criminal Procedure and Evidence. Interpretation and application of those rules are beyond the jurisdiction of this Commission. Under the rules governing this Commission as established by the Supreme Judicial Court, the sole consideration for us is whether there are any ethical limitations in the Maine Bar Rules on Counsel Z’s use of the document.

For the reasons stated herein, the Commission concludes that Counsel Z may use the document and the information contained in it to the extent permitted by the rules of procedure and evidence, but that she should notify Counsel A, the sending lawyer, of the fact that the document has been received and provide a copy of the document to Counsel A on request.

In so holding, we are mindful that the ABA Standing Committee on Ethics and Professional Responsibility reached a contrary result in Formal Opinion 92 368. We do not find that Opinion to be persuasive. The ABA Committee was unable to cite any specific provision of the Model Rules of Professional Conduct in support of its conclusion. Indeed, Committee Opinion 92 368 expressly acknowledged that it was not based on any “black letter of the Model Rules”. Instead, the ABA Committee’s analysis referred to other general principles and rules of law, including the rules regarding attorney-client privilege, the substantive law regarding inadvertent waiver of the attorney client privilege, the law of bailments, and what it characterized as other unspecified “ethical restraints on uncontrolled advocacy”, to conclude that the receiving lawyer had a professional obligation to return the privileged documents to opposing counsel and that failure to do so was an ethical violation.

More recently the Ohio Supreme Court Board of Commissioners on Grievances and Discipline in opinion 93 11 (December 3, 1993) expressed disagreement with ABA opinion 92 368. The Ohio Board stated that it “was not persuaded by A.B.A. Formal Opinion 92 368" which was based on an interpretation of the ABA Model Rules of Professional Responsibility. However, the Ohio Board went on to state that the receiving lawyer, while free to use the information and to disclose the same to his client, was obligated to inform opposing counsel of the disclosure of the confidential information. The Ohio Opinion did not cite any Rule in support of its conclusion.

We disagree with the ABA Opinion and agree with the Ohio Board, although for different reasons. In our view, the standards of ethical conduct in Maine are to be drawn from the codified provisions of the Maine Bar Rules. This Commission is limited to rendering advisory Opinions “on matters involving the interpretation and application of the Code of Professional Responsibility.” Maine Bar Rule 11(c). We are not free to read into those Rules limitations on conduct that have not been stated expressly. However theoretically appealing we might find the conclusion reached by the ABA Committee or the sentiments expressed by the other members of this Commission, we believe that the approach to interpretation and application of the Maine Bar Rules adopted by both the ABA Opinion and the other Commission members are not appropriate for this Commission. “In fairness to attorneys who look to [the Bar Rules] for guidance, the Rules must provide a clear and consistent articulation of what constitutes appropriate professional standards.” Board of Overseers v. Rodway, 470 A.2d 790, 791 (Me.1984). The fundamental purpose behind the creation of the Bar Rules was to establish a clear codified set of standards for attorneys, the violation of which could result in professional sanctions. With that purpose and the Law Court’s directive in Rodway in mind, we strongly believe that this Commission is not free to add ethical limitations not expressed by the Bar Rules.

In reviewing the Maine Bar Rules, the only applicable provisions are Bar Rules 3.2(f)(3) and 3.2(f)(4). Rule 3.2(f)(3) states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Nothing in the history at Rule 3.2(f)(3) indicates that it was intended to prohibit a lawyer from retaining and using a document voluntarily but mistakenly provided by opposing counsel. We do not believe it is dishonest, fraudulent or deceitful within the meaning of this rule to take advantage of the mistake of opposing counsel. In the recent decision of Aerojet General Corporation v. Transport Indemnity Insurance, 22 Cal.Rptr. 862 (1993) involving a similar fact situation, a California court similarly concluded that the receiving lawyer was permitted to retain the mistakenly sent document and was not required to notify the sending lawyer of the receipt of the document. In so holding, that court said:

“There is no State Bar rule of professional conduct, no rule of court nor any statute specifically addressing this situation and mandating or defining any duty under such circumstances.”

Rule 3.2(f)(4) states that “A lawyer shall not:

. . .(4) engage in conduct that is prejudicial to the administration of justice.”

While that rule is very broad, nothing in its history suggests that the language of the Rule on its face would apply to the question before us. So long as use of the memorandum is permitted by the Rules of Evidence or Procedure, 2 use of the memorandum cannot be said to be prejudicial to our adversary system of litigation. We do not believe that Rule 3.2(f)(4), standing alone, requires Counsel Z to return the document to the sending lawyer, nor does that rule prohibit a lawyer from taking advantage of any other mistake of opposing counsel such as the failure to (1) plead an affirmative defense, (2) assert a counterclaim, (3) argue a theory of law, (4) assert an evidentiary objection at trial, (5) introduce an essential piece of evidence or (6) demand an important provision during contract negotiations.

Although we believe that Rules 3.2(f)(3) and (4) do not on their face require return of the document in issue, we are mindful that in interpreting the Bar Rules we cannot ignore the substantive law of Maine, specifically Title 17 A M.R.S.A. § 356.3 That statute makes it a crime to retain mistakenly delivered property of another. It is unclear to the Commission how that statute would apply to the present facts. Reasonable arguments can be made as to whether that law applies to documents obtained in pretrial discovery. Unfortunately there is no judicial guidance on its application to facts such as those posed to us.

However, we must acknowledge the real possibility that this law could apply. If the statute did apply to these facts, then we believe that it would necessarily follow that to retain documents in violation of state law would be “dishonest” under Rule 3.2(f)(3). Further, we think that a violation of Section 356 would also violate Rule 3.2(f)(2) (“A lawyer shall not ... engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”).

Since the jurisdiction of this Commission is by rule expressly limited to interpretation of the Bar Rules, and since we have consistently declined to interpret statutes, we are unable to determine whether Section 356 would apply in this case. However, because of the possibility that the statute could apply to documents received in discovery, we conclude that the prudent course is to advise the receiving lawyer to notify the sending lawyer of the receipt of privileged documents. Further, if requested by the sending lawyer, the receiving lawyer should send a copy of the document to the sending lawyer in order to ensure that there is no misunderstanding about the document in issue. Such notification will afford the sending attorney the opportunity to take any action deemed appropriate, including for example moving for return of the document or seeking a judicial construction of the application of Section 356, and will negate the possibility that the receiving lawyer “intended to deprive the owner” of property within the meaning of § 356(2). Accordingly, on the facts of the case presented to us, we hold that Counsel Z may retain the inadvertently delivered privileged document and use it in any way permitted by the Rules of Evidence and Procedure, but Counsel Z should notify Counsel A of the receipt of the document and send a copy of the document to opposing counsel on request.

We are aware that a single Justice of the Supreme Judicial Court has held that the intentional and surreptitious removal and photocopying of trial materials of opposing counsel is a violation of Bar Rules 3.4(f)(3) and 3.4(f)(4), the same rules at issue in this opinion. Board of Overseers of the Bar v.Ebitz, BAR 92 10 (l992) 4. However, the facts in Ebitz are very different from those considered in this Opinion. Attorney Z has not engaged in any affirmative misconduct to obtain the privileged document, but rather has been the passive beneficiary of opposing counsel’s error. 5 [ On the facts before us, the document came into the hands of Counsel Z from opposing counsel. In such a circumstance the Maine Bar Rules do not prohibit Counsel Z from retaining and using the documents so long as she notifies Counsel A of the inadvertent disclosure and provides a copy of the document to Counsel A on request.

We recognize that the other members of the Commission would go further and require Counsel Z to return the inadvertently sent documents.6 That position and the ABA Committee Opinions are based in part on the view that lawyers owe to each other a level of courtesy that obligates them to return an inadvertently disclosed privileged document. That general philosophy also appears to form the foundation for the views of the other Commission members. However appealing such rationale is in theory, we find no support for that conclusion in the Maine Bar Rules. As the court stated in Aerojet General: The attorney client privilege is a shield against deliberate intrusion; it is not an insurer against inadvertent disclosure.22 Cal. Rptr. at 866. We agree. We join the other Commission members in their concern for maintaining and improving the level of civility, honor and common courtesy in the profession, however we do not believe that we can enforce those values through the Bar Rules in the absence of specific provisions to that effect in those Rules. Nonetheless, we think that this reading of the Bar Rules in conjunction with § 356 will also help to promote those values.

* * *

Four members of the eight member Professional Ethics Commission subscribe to the foregoing opinion. One member of the Commission concurs in the result reached, but is of the view that the obligation of the receiving lawyer to inform the sending lawyer of receipt of the document and provide a copy of the document to the sending lawyer on request is supported by Bar Rule 3.2(f)(3) (prohibiting conduct “that involves dishonesty”) regardless of 17 A M.R.S.A. § 356, and notes that in any event, following such disclosure by the receiving lawyer, either party may file a motion with the court with respect to the use of the document in litigation or otherwise under the circumstances of the particular case.

Dissent

Three members of the Commission dissent from the plurality opinion authorizing the use of the inadvertently obtained privileged materials.

In the debate about how the ethical question discussed in the majority opinion should be resolved, several Commission members indicated that, acting as individuals, they would return the papers as requested. However, absent any specific disciplinary rule which required otherwise, these members felt constrained to follow the client’s wishes that they retain the documents even though they would have preferred to do otherwise.

In an article entitled “Uncivil Law” appearing in the winter, 1994, edition of the Boston College Magazine, former B.C. Law School Dean Dan Coquillette states that the “legal culture” must change before the public’s perception of lawyers will improve. He suggests that attorneys cannot separate their private views of justice and morality from the standards which they practice as professionals: One lawyer I talked to who was very embarrassed about the profession said to me, “You know, one thing I keep telling myself is that being a lawyer is what I do. It’s not what I am.” I said, “You’ve got it wrong. Aristotle said you are what you do every day. You are the product of what you do day in, day out, hour in, hour out. You can’t say that being a lawyer is what you do and not what you are . . . There’s no way you can split these roles. If you act like a jerk in court, you’re not an aggressive advocate pursuing an assertive strategy—you’re just a jerk.” Id at p. 42. These views led Dean Coquillette to conclude that an attorney who had been asked by opposing counsel to return unopened a missent confidential letter could not ethically permit himself to be guided by his client’s desire that he not do so. Indeed, Dean Coquillette attributes much of the profession’s present image problem to its failure to maintain a proper balance between the duty to uphold the system of justice embodied in the lawyers’ oath, and the obligation to promote the interests of individual clients. The foregoing considerations suggest that conduct which attorneys would find repugnant in their private lives, e.g., refusing to return something which clearly belongs to another, should not be tolerated on a professional level. It must be conceded that no disciplinary rule can be cited which specifically requires that the documents be returned in this case over the client’s objection. However, the Commission’s reluctance to rely on generalized rules of conduct to resolve specific ethical questions should not deter us in this instance from holding that failure to return the confidential letter in this case would be “prejudicial to the administration of justice” and therefore violate Rule 3.2(f)(4). See also Me. Bar R. 3.1(a).

Our inability to identify a specific rule condemning such conduct would presumably not prevent the majority from requiring that the document be returned if it had been taken from Attorney A’s file by a disgruntled staff member and sent to Attorney Z, or if it had been picked up from counsel table and copied by the opposing attorney. See Board of Overseers v. Ebitz, BAR 92 10 (1992). It is obvious, therefore, that the majority would at least in some cases be willing to condemn professional conduct even without benefit of a specific rule upon which to base its conclusion. Since we are, therefore, engaged in an exercise in line drawing to determine what circumstances would require the return of the confidential material even though no disciplinary rule specifically requires it, these dissenting members would draw the line at holding that the privileged information must be returned in those cases in which it is clear from the circumstances that the disclosure was unintended. Although we would resolve the hypothetical presented to the Commission by Bar Counsel in this case by requiring Attorney Z to return the privileged documents and make no further use of them in the litigation, it is conceded that cases may arise in which Attorney Z’s ethical obligation will not be so clear. After all, Attorney Z should not be expected to rectify every mistake made by opposing counsel in the course of litigation. In those situations in which an attorney is unclear whether an opponent’s inadvertent disclosure gives rise to an ethical duty to keep the information confidential, the attorney should request the court having jurisdiction of the matter for instruction as to how to proceed.


1In requesting this Opinion Bar Counsel has not indicated the grounds for the factual statement that Counsel Z “should have known” that the disclosure by Counsel A was “inadvertent.” Nevertheless, the Commission answers this Request based on the facts as posed by Bar Counsel. We do not express any view as to the circumstances under which an attorney “should know” of another attorney’s inadvertent error.

2The Commission is aware that at least one court in this jurisdiction has expressly held that inadvertent disclosure of privileged documents constitutes a waiver of any privilege. See the unreported opinion of the U.S. District Court in F.D.I.C. v. Singh, et al. Civil No. 91-0057-P-C (January 10, 1992). Such holding, however, appears to be the minority view. See W. Ayers, Attorney Client Privilege: The Necessity of Intent to Waive the Privilege in Inadvertent Disclosure Cases, 18 Pac.L.J. 59(1986).

3That statute provides:

A person is guilty of theft if:

  1. He obtains or exercises control over the property of another which he knows to have been lost or mislaid or to have been delivered under a mistake as to the identity of the recipient or as to the nature of the amount of the property; and

  2. With the intent to deprive the owner of the property at any time subsequent to acquiring it, he fails to take reasonable measures to return it.

4See also the similar decision in Lipin v. Bender, 597 N.Y.S.2d 340 (1993).

5The conclusion expressed in this Opinion is expressly limited to the facts presented. We specifically decline to indicate our view on other facts, for example: (1) if Attorney Z received a call from Attorney A telling her that he had sent a package of discovery documents which inadvertently contained a privileged document and asking Attorney Z to return the package or destroy the document without reading it or (2) if Attorney Z received a package of discovery documents which included privileged documents and was aware that the privileged documents were surreptitiously placed in the package by a disgruntled employee of Attorney A who was attempting to sabotage A or his client.

6The view expressed by the other Commission members would also mean that other “inadvertently” disclosed documents would also have to be returned. Thus, for example, under their analysis, if Counsel Z served a document request seeking certain specified categories of documents, and if Attorney A provided some additional non-privileged documents beyond the scope of Z’s request, Attorney Z would be ethically required to return to Attorney A those extra non-privileged but voluntarily furnished documents. In addition, their analysis would shift the burden of vigilance from the producing attorney to the receiving attorney. Such a shifting of responsibility finds no basis in the Bar Rules.


Enduring Ethics Opinion