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Attorney/Client Privilege & E-Mail

November 01, 2006 BY Def Admin

E-mail has changed the way law firms do business. Not only does it save time, it allows for efficiency in managing large discovery matters. With convenience comes concern over the security of privileged information. The attorney/client privilege could be waived when you hit send. Waiver has yet to be directly addressed by Georgia State Courts, though there is some guidance from Federal Court. ’s view encourages lawyers to simply be honest with each other in inadvertent e-mail disclosure situations. More direction on preserving this privilege is found in the American Bar Association (ABA) opinions and the Model Rules of Professional Conduct.

Last year the issued formal ethics opinion 05-437. This opinion brings the inadvertent disclosure situation directly in line with the Model Rules of Professional Conduct.[1]

A lawyer who receives a document from opposing parties or their lawyers and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures. To the extent that Formal Opinion 92-368 opined otherwise, it is hereby withdrawn.[2]

The withdrawn formal opinion provided as follows:

A lawyer who receives materials that on their face appear to be subject to the attorney/client privilege or otherwise confidential, under circumstances where it is clear they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide [by] the instructions of the lawyer who sent them.[3]

The new opinion (05-437) requires only that the recipient of the inadvertent disclosure immediately notify the sender of the mistake. The sender can then take protective measures on the disclosed information. Whether or not a document appears to be confidential, a lawyer has the obligation to notify the sender of the disclosure in accordance with Model Rule of Professional Conduct 4.4(b) which provides:

A lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.[4]

The Model Rules do not instruct lawyers specifically to return inadvertently sent document(s); however, the comments to the rules indicate that lawyers, as a matter of personal ethics, should use their professional judgment in deciding whether to voluntarily return such documents.[5]

Commentary on the Model Rules clearly applies to inadvertent rather than unauthorized disclosures. In the case of unauthorized disclosures, a [recipient] lawyer should, if he or she knows such documents were improperly received, refrain from reviewing the documents or limit the review to the extent required to determine the proper procedure. When in receipt of such documents, a lawyer should also notify opposing counsel and follow that attorney’s instructions on how to handle the documents.[6] The only way a receiving attorney can ignore this duty is if each document were obtained from someone acting under a whistle blowing statute or the attorney can legitimately establish that the documents were not produced in discovery but should have been.[7]

As for inadvertent disclosures of privileged information, an attorney must immediately notify the client that the documents have mistakenly been sent to opposing counsel. Courts have ruled inconsistently on using, failing to return or simply reading inadvertently disclosed documents and they run the gamete on whether the attorney/client privilege has been waived as a consequence of such disclosures.

Some courts take a strict liability approach finding that an inadvertent disclosure waives the privilege regardless of whether the sender was careful or careless.[8] Other courts are more lenient and hold that the privilege cannot be waived through inadvertent disclosure because there has been no “knowing” disclosure by the client.[9] This happens to be ’s approach.

The USDC, Northern District held that the privilege belongs to a client and not the attorney. Only the client may waive the privilege and the privileged nature of a confidential communication is not lost or waived even if the attorney voluntarily or inadvertently produces a copy of the communication.[10] In that case, a letter containing the Plaintiff’s thoughts and opinions about the defendants’ counterclaim was inadvertently produced to the defendant in discovery. It was part of a document production with nearly 1,000 pages being disclosed in discovery. The letter which was attached to a discoverable stock certificate was not removed from the certificate when it was copied for production.

The Paintiff’s counsel took proper measures to correct the inadvertent disclosure. She notified defense counsel, and wrote a letter which was hand delivered the day after the disclosure was revealed. The letter put defense counsel on notice that Plaintiff’s counsel did not waive the attorney/client privilege as to the inadvertently produced documents and she requested their return. It was her understanding the documents would be returned and she was led to believe the defense attorneys had not retained a copy of the letter nor would they abuse the attorney/client privilege. In fact, the defense attorneys did copy the letter and later used it in a brief in response to the Plaintiff’s Motion to Compel.

In its Order, the Court found this use of the letter by defense counsel to be a considerable abuse to the integrity of the legal profession and admonished defense counsel strongly throughout its Order. Ultimately, the Court stated that ’s law “would not permit a party to whom a confidential communication is made, directly or indirectly, to violate the confidence reposed”.[11]

In reaching its conclusion, the Court reasoned that a client’s disclosures cannot be used against him/her in controversies with third persons. These disclosures are intended to secure a client’s confidence in the secrecy of his/her communication with the attorney in an effort to promote freedom to seek legal advice.[12]

Based on the Lazar holding, it seems that the attorney/client privilege is not waived in for inadvertent e-mail disclosure. Even so, attorneys should carefully oversee e-mail discovery because once that privileged document is sent by e-mail, we can only hope others play by the rules.

[1] “Gentlemen Do Not Read Each Other’s Mail: A lawyer’s duties upon receipt of inadvertently disclosed confidential information”, The Labor Lawyer, Joseph L. Paller, Jr., Vol. 21, No. 3, Winter/Spring 2006.

[2] Comm. on Ethics and Professional Responsibility, Formal Op. 05-437 (2005).

[3] Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992).

[4] Model Rules of Professional Conduct, R. 4.4(b) (2002).

[5] , Cmt. 2.

[6] Comm. on Ethics and Professional Responsibility, Formal Op. 94-382 (1994).

[7] Model Rules of Prof. Conduct (2002).

[8] The Labor Lawyer, supra, page 254.

[9] , pg. 254.

[10] Steven E. Lazar v. D. Rush Mauney, James L. Bruce, Jr., John Boonstra, Sam F. Dayton, and Globaltech Industries, Inc., 192 F.R.D. 324 (2000).

[11] , page 330.

[12] , page 328.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley