Ethical Duties of the Recipient

Ethical Duties of the Recipient

Rule 26(b)(5)(B) binds a recipient only after the producing party sends notice of a privilege or trial-preparation claim.¹ Nothing in that rule tells a recipient who spots an apparent mistake to say so. A producer cannot notify anyone of an error it has not found, and Rule 502(b)(3) asks whether the holder promptly took reasonable steps to rectify the error, including, if applicable, following Rule 26(b)(5)(B), so a recipient's silence puts the promptness showing at risk.² The stakes are the traditional ones. A disclosure of privileged information in discovery could be held a waiver and, in some circumstances, a subject matter waiver that forced the client to produce every privileged communication on the same subject.³

The ethics rules close the gap from the recipient's side. ABA Model Rule 4.4(b) provides that a lawyer who receives a document relating to the representation of the lawyer's client, and who knows or reasonably should know that it was inadvertently sent, shall promptly notify the sender.⁴ The two rules start from different places: the civil rule starts with the producer's notice, and the ethics rule starts with what the recipient knows. That difference lets them work together.

The ethics rule has a narrow trigger and a narrow command. The trigger is knowledge, actual or constructive. The rule reaches the lawyer who knows of the mistake and the lawyer who reasonably should know of it, so a recipient cannot escape the duty by refusing to draw the inference a careful lawyer would draw from the document and the way it arrived. The command is to notify the sender promptly, and nothing more. Prompt notice lets the sender invoke Rule 26(b)(5)(B) at once and keeps alive the promptness showing that Rule 502(b)(3) requires.⁵

The first recipient can see that the document announces its own protected character and has no place in the production. The second sees no sign of mistake, and without one the rule gives him nothing to act on.

Having required notice, Rule 4.4 says little else, and it says so on purpose. Comment 2 states that whether the lawyer must take additional steps, such as returning the original document or electronically stored information, is a matter of law beyond the scope of the rules, as is the question whether the document's privileged status has been waived.⁶ The rule therefore does not tell the recipient whether to return the document, whether to keep reading it, or whether the producer lost the privilege. Each question is answered elsewhere. Return and nonuse come from Rule 26(b)(5)(B) once the producer gives notice, and from any protective order or local court and ethics rule. Waiver is for the judge, who applies the law of evidence.⁷ A recipient who has sent the notice has complied with the ethics rule and has neither conceded nor defeated anything about the privilege. The notice does not trigger the civil rule's duties either. Rule 26(b)(5)(B) speaks of the party making the claim notifying the recipient of the claim and its basis, so the producer must still send its own notice before the duties to return, sequester, or destroy attach.⁸

Rule 4.4(b) stops at notice because the ABA tried a broader approach first and then retreated from it. In 1992 the ABA's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-368. It said that a lawyer who receives materials that on their face appear privileged or otherwise confidential must refrain from examining them further, notify the sender, and abide by the sender's instructions to return or destroy them.⁹ The opinion rested on the weight of confidentiality: losing it over a simple slip is too heavy a price, particularly because the one who pays is usually the client and not the sending lawyer.¹⁰ It also drew on constructive bailment, the doctrine that a person who comes into possession of another's property by mistake holds it as a bailee and must restore it to the owner.¹¹ In 2002 the ABA amended Model Rule 4.4(b) to require the recipient to notify the sender, and the amended rule said nothing about what to do with the materials afterward.¹² In 2005 the committee withdrew Opinion 92-368 on the ground that, apart from the notice obligation, the proper disposition of inadvertently received materials was no longer resolved by applying the Model Rules.¹³

Withdrawal ended the opinion's status as a reading of the Model Rules but left its force as an argument intact. The opinion described itself as an explication of general principles of professional responsibility, informed by substantive law, and it still carries substantial persuasive weight.¹⁴ Some bar associations, state ethics rules, and courts still follow its approach, so a recipient in a particular jurisdiction may face a return-unread requirement even though the Model Rule imposes none.¹⁵ Where no such law applies, Comment 3 to Rule 4.4 leaves the choice with the lawyer. It observes that some lawyers may choose to return a document or delete electronically stored information unread, for example when the lawyer learns before receiving it that it was inadvertently sent. It adds that where applicable law does not require this, the decision is a matter of professional judgment ordinarily reserved to the lawyer.¹⁶ Because the comment is permissive, declining to return a document unread is not by itself a violation of Rule 4.4(b).

The sending lawyer carries exposure of a different kind. Lawyers must safeguard protected information about their clients, and Rule 5.3 extends that duty to the office. A lawyer must give nonlawyer assistants appropriate instructions about the obligation, and when a firm hands support work to an outside company, its managerial and supervisory lawyers must adopt measures to ensure that the contractor also adheres to professional ethical standards.¹⁷ A lawyer who lets documents go out without screening, or who leaves staff or a vendor to handle production without instruction, risks failing that duty. A prompt notice from the recipient lets the sender repair the mistake before the harm grows.

When a question asks only what the ethics rule requires, the answer ends at step two. An answer that adds a duty to return, or a conclusion about waiver, credits Rule 4.4(b) with content it does not have.