Prompt Notice to the Sender

Prompt Notice to the Sender

Rule 4.4(b) answers the question “What must the lawyer do?” in a single mandatory clause: a lawyer who knows or reasonably should know that a document or electronically stored information was inadvertently sent “shall promptly notify the sender.”¹ “Shall” removes the lawyer’s discretion, so once the trigger is met there is nothing left to weigh. “Notify” demands an act that reaches another person. A recipient who stops reading, or who keeps the item and says nothing, has done nothing the sender can ever learn of. The notice goes to the sender, not to a court or a disciplinary body, because the sender is the one who can act on the mistake.

The purpose of notice is to give the sender that chance to act. Illinois adopted the same duty in a rule effective January 1, 2010, and the opinion describing it reports that the commentary states the purpose of notification as allowing the sender to take protective measures, while placing waiver of privilege outside the rule’s scope.² As the opinion paraphrases it, the Illinois rule speaks of a document the lawyer knows was inadvertently sent, a trigger a little narrower than the Model Rule’s “knows or reasonably should know.” In Coburn Group v. Whitecap Advisors LLC, the court concluded that requiring the receiving lawyer to notify the sender is clearly at odds with any purported duty to use the information for the client’s benefit.³ A duty to tell the other side that you hold its mistake is hard to square with a duty to exploit that mistake.

Property law reflects a similar instinct. One commentator observes that the law of bailments generally imposes a constructive bailment when a party takes possession of property knowing that it has been separated from its rightful owner, and that such a bailment entails at least a duty to return the property.⁴ The commentator reasons that the principle applies with as much or more force to a lawyer who receives documents or electronic data that the lawyer has reason to know were stolen.⁵ That analogy concerns stolen material and a duty to return it. Rule 4.4(b), by its text, asks only for notice.

Promptness matters because a mistaken item does not stay where it landed. One source describes the mirror-image problem. A party reviews information, does not think it privileged, sends it to IT to be put in a spreadsheet or to its expert who works it into her calculations, and only then hears the other side claim privilege.⁶ Rule 26(b)(5)(B) then requires the party “to take reasonable steps to retrieve the information if the party disclosed it before being notified,” a court has discretion to order some reimbursement as a condition of preserving the privilege, and the burden of retrieval can figure in the Rule 502(b) waiver analysis.⁷ Every downstream use makes retrieval costlier, and early notice reaches the sender before the item has traveled. The text supplies no number of hours or days, only the word “promptly.” Read against the rule’s purpose, notice is prompt when it reaches the sender early enough for protective measures to remain meaningful. A message sent the day the mistake is recognized plainly qualifies. A message held back until the item has been put to work does not, however courteous its wording.

Silence and quiet deletion can each feel cautious to the recipient. Neither supplies the one thing the rule is built to deliver, which is the sender’s knowledge of the error. Compliance in a discovery dispute looks like what Milton’s lawyer did when apparently privileged documents arrived: he notified BBS, the party that had disclosed the emails, and the source treats that notice as performing the ethical obligation.⁸

Two clocks run after that notice, and they answer different questions. The receiving lawyer’s promptness is an ethics question under Rule 4.4(b): did the notice reach the sender in time to be useful? The sender’s promptness is a waiver question under evidence law. The Model Rule does not address waiver and leaves it to the judge, and under Federal Rule of Evidence 502(b) the holder is protected against waiver by inadvertent disclosure only if it “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”⁹ A court would therefore examine both the sender’s screening efforts and how promptly and reasonably it acted once it discovered the disclosure.¹⁰ Notice from the receiving lawyer does not answer that second inquiry. The limits of Rule 4.4(b), including what it leaves to other law, are the subject of the next section.