Bar Counsel Notes: Client Confidentiality Issues

Attorney represents the PR involved in a probate case. One of the beneficiaries (X) of the involved Estate who is pro se has forwarded to Attorney copies of emails between X and a lawyer whom she had apparently earlier consulted with but never hired. Attorney believes (X) has waived privilege. What may or should Attorney do with those emails?

Attorney cannot read the emails. Instead, Attorney must instruct a "screened off" staff member at her office, or perhaps a colleague if the attorney is a sole practitioner, to confidentially review those emails and not provide any substantive information to Attorney. If it appears from staff's confidential review that there is any possible basis for the pro se beneficiary to claim attorney/client privilege under MRPC 1.6 and/or 1.18, Attorney must have the court officially determine whether those communications actually implicate MRPC 4.4(b) [Respect for Rights of Third Persons; Inadvertent Disclosures]. See also Fiber Materials, Inc. v. Subilia, 2009 ME 71, 974 A.2d 918.

*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.