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Opinion #172. Obligation to Return Inadvertently Disclosed Privileged Documents
Vacating Opinion #146
Issued by the Professional Ethics Commission
Date Issued: March 7, 2000
Bar Counsel has asked the Commission to reconsider its decision in Opinion No. 146 in light of the recent decision of the Law Court in Corey v. Norman, Hanson & DeTroy, 1999 ME 196. In Opinion No. 146, a majority of the Commission determined that it was not a violation of the Code of Professional Responsibility for counsel to fail to return to opposing counsel an obviously privileged document inadvertently made available to him by opposing counsel. Upon facts nearly indistinguishable from those assumed in Opinion 146, the Corey Court upheld a Superior Court order requiring that the receiving counsel return the privileged document to opposing counsel. It bears mention that the Commission, in Opinion No. 146, conscious of its limited and specific jurisdiction[1] to interpret Rule 3 of the Bar Rules, based its conclusion on the absence of any provision in the Code of Professional Responsibility that shifted to the receiving lawyer the obligation to remedy the negligent failure of opposing counsel to guard against his own violation of the lawyer-client privilege. In Corey, the Law Court, jurisdictionally unconstrained, has now pronounced that, as a matter of common law,[2] the obligation to preserve the lawyer-client privilege is indeed an affirmative obligation shared by adversaries, and that the privilege cannot be inadvertently relinquished.
Having earlier determined that the Bar Rules furnished no basis for discipline under analogous facts, the Commission is now confronted with the conundrum of having substantive law impose upon lawyers obligations not founded in the Bar Rules. This Commission has long been reluctant to broaden the concept of conduct "...that is prejudicial to the administration of justice..." in violation of Rule 3.2(f)(4).[3] The source of this reluctance is that the standards of conduct set forth in Rule 3 of the Bar Rules establish the minimal standards of professional conduct, for the violation of which the imposition of disciplinary measures is called for. Because of the risk of discipline, the Commission has eschewed finding conduct to be a violation, which is merely implicit from the text of the Code. Rather, except where the Law Court has expressly spoken,[4] only those prohibitions (and affirmative obligations) which are clear in the Code should form the basis for imposing discipline upon a lawyer. This contrasts with the "ethical considerations" accompanying the former ABA Canons of Ethics, which purported to define higher, aspirational standards of conduct; under the Maine Code, a lawyer cannot be disciplined for acting in an indecorous manner.
Nonetheless, in the face of a clear holding by the Law Court that an obligation exists to protect against the consequences of the unwitting failure of opposing counsel to preserve the lawyer-client privilege, we can find a solid basis for defining at least one aspect of conduct that is prejudicial to the administration of justice. As the Court pointed out in Corey, the purpose of the lawyer-client privilege is "to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."[5] For this reason, the Commission withdraws its Opinion 146.
Footnotes
[1] See Maine Manual on Professional Responsibility, Opinion No. 82, at p. 0-291.
[2] We assume that since the Court does not cite any provision of the Bar Rules in support of its decision, the opinion is not based upon an interpretation of the Bar Rules.
[3] See Maine Manual on Professional Responsibility, Opinion No. 88, at p. 0-309: "...the Commission concludes that it would be inappropriate to construe the general language of Rule 3.2(f)(4) as if it contained that requirement. ln other words, while it might well serve the ends of justice to require lawyers to disclose client secrets concerning misconduct of judges or members of administrative tribunals, any such requirements would more appropriately be imposed by way of amendments to the Bar Rules.?
[4] See, for example, State v. Grant, 487 A.2d 627 (Me. 1985).
[5] Quoting Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
Enduring Ethics Opinion
<font color="Red"><strong>  Vacating Opinion #146</strong></font>
