By: Robert C. Port, Esq.
Business Litigation/Securities Arbitration & Litigation
Cohen Goldstein Port & Gottlieb, LLP
990 Hammond Drive, Suite 990
Atlanta, Georgia 30328
(678) 775-3550 (Direct Dial)
(770) 901-9417 (Fax)
Web Site: http://www.cgpglaw.com
Whoops! You’ve Got Mail!
With a click of the mouse, your opponent has inadvertently emailed to you a memo outlining case strategy, a summary of the weaknesses in your opponent’s case, or other highly sensitive privileged and confidential information. As the recipient of such obviously misdirected email, what are your professional and ethical obligations?
In determining a course of action, a number of professional and ethical obligations collide. On the one hand, Canon 7 of the Code of Professional Responsibility requires that an attorney “represent a client zealously.” Counsel is further encouraged to “always act in a manner consistent with the best interests of [the] client.” EC 7-9. Some argue that in our zealous representation of a client, we should be entitled to take advantage of any error or mistake by our opposition. We have, of course, no obligation to zealously protect the privileged communications of our opposition. In a case of inadvertent disclosure, it is the other attorney who arguably has breached his obligation to preserve the confidences and secretes of his client, and perhaps he or she ought to suffer the consequences. DR 4-101. Indeed, counsel has a statutory obligation not to disclose confidential communications. O.C.G.A. § 24-9-24. Moreover, if an attorney is placed in the position of trying to cure or protect the opponent’s inadvertent disclosure of privileged communications, we are necessarily placed in direct conflict with the interests of our client.
On the other hand, our duty of zealous representation must be executed concurrently with the ethical obligation to “act in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.” Attorneys must also be mindful of the ethical obligation to “conduct [ourselves] so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of . . . clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.” EC 9-2; EC 9-6. Finally, attempts to use such inadvertently disclosed information may precipitate a motion to exclude the evidence, or a motion to disqualify receiving counsel, which may cause harm to the receiving attorney’s client.
In 1992, the ABA recognized that advances in technology had made it “technologically more likely that through inadvertence, privileged or confidential materials will be produced to opposing counsel by no more than the push of the wrong speed dial number on a facsimile machine.” ABA Formal Opinion 92-368 (1992), entitled “Inadvertent Disclosure of Confidential Materials.” In considering such inadvertent disclosures, the ABA opined that: “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 the instructions of the lawyer who sent them.”
More recently, in proposed Rule 4.4, the ABA Ethics 2000 Commission has modified the suggested obligations of an attorney who has received an inadvertent disclosure of confidential documents. Proposed Rule 4.4(c) provides that “a lawyer who receives a document and has reason to believe that the document was inadvertently sent shall promptly notify the sender.” The requirement in Formal Opinion 92-368 that the receiving lawyer abide by the instructions of the sender has been eliminated, leaving it to the person making the mistaken disclosure to take whatever protective measures they deem appropriate. The Comment further observes that other questions raised by the disclosure, such as whether the original documents must be returned to the sender, or whether the privilege has been waived by the disclosure, are questions of law beyond the scope of the proposed Rule. (Id). The Reporter’s Notes further observe that a lawyer who voluntarily returns a document unread “commits no act of disloyalty by choosing to act in accordance with professional courtesy.”
Court and State Bar Ethics Rulings
In considering these issues, some courts have followed ABA Formal Opinion 92-368, or reached conclusions that are consistent with that Opinion. These courts generally evaluate the mistaken disclosure under a subjective analysis to determine whether there was an intention to waive the attorney/client privilege. As set forth by the court in Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A.160 F.R.D.437 (S.D.N.Y. 1995), “The rationale behind this view is twofold. First, these courts reason that privilege belongs to the client, so an act of the attorney cannot effect the waiver. . . . Second, a ‘waiver’ is by definition the intentional relinquishment of a known right, and the concept of a ‘inadvertent waiver’ is therefore inherently contradictory” 160 F.R.D. at 442 (citations omitted).
Other courts, however, take a strict objective approach, finding that any inadvertent disclosure of privileged documents is a waiver, notwithstanding the client’s subjective intent. See, e.g., Wichita Land & Cattle Co. v. American Federal Bank, F.S.B. 148 F.R.D.456, 457 (D.D.C. 1992). Still other courts (and perhaps the majority) have undertaken a balancing analysis, considering a number of factors to determine whether the inadvertent disclosure waives the privilege. Such factors include “(1) the reasonableness of the precautions taken to prevent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.” See, e.g., Harmony Gold U.S.A, Inc. v. Fasa Corp., 169 F.R.D. 113, 116 (N.D. Ill. 1996).
State Bar Ethics opinions are similarly divided. For example the District of Columbia ethics committee held that it would not be improper to retain and use confidential documents inadvertently sent by opposing counsel, if it was not facially obvious that the documents were confidential, and the recipient had to read the documents before determining that they were not intended for him. However, if the recipient knows of the inadvertent disclosure before the materials are examined, he must return them unread, and may commit an ethical violation if he reads or uses them. District of Columbia Ethics Opinion No. 256 (1995). Maine’s Ethics Commission, on the other hand, concluded that a lawyer receiving an inadvertently produced confidential document “may use the document and the information contained in it to the extent permitted by the rules of procedure and evidence” Maine Ethics Opinion 146 (1994). Kentucky’s Bar has found that while lawyers should follow ABA Opinion 92-368, and the use of inadvertently disclosed information is “discouraged”, an attorney who retains and uses privileged documents inadvertently sent to him will not be disciplined if a good faith argument can be made that a waiver of the privilege occurred. Kentucky Ethics Opinion E-374 (1995). Most bar ethics committees agree that an attorney who receives inadvertently disclosed confidential information must notify the other lawyer. See, e.g., Florida Ethics Opinion 93-3 (1994); Maine Ethics Opinion 146 (1994); Ohio Ethics Opinion 93-11 (1993); Illinois Opinion 98-04 (1999). Illinois’ Ethics Committee also specifically finds that the lawyer who inadvertently sent the material “has a duty to advise a client that confidential information was inadvertently transmitted to and read by opposing counsel.” Id.
Unfortunately for the Georgia practitioner, The Code of Professional Responsibility does not directly address this issue, nor do the presently proposed revisions to the Code. Additionally, there are no formal advisory opinions considering this issue, and research has failed to uncover any Georgia appellate cases directly on point.
However, Georgia cases do provide some guidance. In Revera v. State, 223 Ga. App. 450, 477 S.E.2d 849 (1996), the Court of Appeals, relying on O.C.G.A. § 24-9-24 and McKie v. State, 165 Ga. 210, 140 S.E. 625 (1927), stated that “[t]he privileged nature of a confidential communication is not lost or waived even if the attorney should voluntarily or inadvertently produce a transcript of the communication.” In Revera, the court held it error for the State to use a confidential communication to refresh a witness’ recollection. See, also, Marriott Corp v. American Academy of Psychotherapist,157 Ga. App. 497, 277 S.E.2d 785 (1981) (no waiver of privilege found merely because plaintiff, without explanation, had obtained a copy of a privileged communication).
If the rationale of these case is followed, counsel’s inadvertent production of confidential email should not automatically be deemed a waiver of the privilege. Instead, each case should be tested on its individual facts to determine whether counsel’s inadvertent disclosure should be imputed to the client as either an intentional or careless waiver of privilege. Presumably, the court would undertake the type of balancing test adopted by other jurisdictions.
Decisions from the federal district courts in both the Northern and Middle Districts of Georgia have adopted a balancing test to determine whether an inadvertent disclosure has waived the privilege. In Briggs & Stratton Corp. v. Concrete Sales & Services, 176 F.R.D 695, 699 (M.D. Ga. 1997), Judge Owens found that the “case by case approach is the better approach” for resolving these issues. Subsequently, in In re: Polypropylene Carpet Antitrust Litigation, 181 F.R.D. 680 (N.D. Ga. 1998), Judge Murphy adopted the balancing tests set forth by Judge Owens in Briggs & Stratton in finding that a box of Department of Justice investigatory documents inadvertently disclosed during the course of litigation should be returned. Judge Murphy, however, refused to disqualify receiving counsel. The Court further held that “a party has a professional obligation to notify the court and its adversaries if it comes into possession of such documents.” Counsel should be aware, however, that Judge Carnes of the Northern District has adopted a strict, objective rule, finding that the “inadvertent disclosure of privilege documents waives the privilege.” BellSouth Advertising & Publishing Corp. v. American Business List, Inc, 1992 U.S. Dist. LEXIS 17679 (N.D. GA. 1992).
Until the Georgia bar or Georgia Appellate courts specifically address this issue, counsel receiving inadvertently disclosed email must proceed thoughtfully and with caution. At a minimum, opposing counsel should be notified. Presumably, if the recipient intends to use such information during discovery or at trial, the fact of the inadvertent disclosure will become known in due course. Both receiving and sending counsel should consider the various circumstances related to the disclosure, including the precautions, if any, taken by the opponent to avoid disclosure, the extent of the disclosure, the type of information disclosed, and the measures taken by the opponent to try to rectify the disclosure. Counsel for the recipient must further consider the risks of disqualification or other pre-trial motions attempting to mute the damage done by the disclosure. All counsel must proceed in a fashion that zealously represents their client’s interest, while remaining mindful of their profession and ethical obligations to the court and the public.
The information above is provided for general educational purposes and not as legal advice. Laws in areas in which we practice change continually and also vary from jurisdiction to jurisdiction. Therefore no visitor to our site should rely on any of the articles provided for legal advice, but should always consult their own attorney regarding legal matters.
©2000 Robert C. Port. All Right Reserved.
* Robert C. Port is a partner with Cohen Goldstein Port & Gottlieb, LLP, Atlanta, Georgia, where he practices business litigation, securities arbitration & general litigation. He received his J.D., with Honors, from the University of North Carolina in 1983.