Let’s say you are minding your own business and enjoying the practice of law, when one of the following happens:
• You receive records, pursuant to a subpoena, regarding Mr. Smith and Mrs. Jones, but you only issued a subpoena for records of Mr. Smith.
• Opposing counsel electronically files an ex parte motion and because of some snafu, you receive a copy of the ex parte motion.
• You receive mail from a witness that was intended for opposing counsel.
What just happened?
What happened was that you just became the latest victim of an “inadvertent disclosure.” The following is my definition of inadvertent disclosure:
“in·ad·vert·ent dis·clo·sure: /in?d’v?rtnt dis’kl?ZH?r/:
“That thing in the practice of law that occurs when someone else makes a mistake, but it somehow becomes your ethical problem.”
In each of the above examples, you have received information (that may or may not be helpful to your client) that you were not supposed to receive and that receipt has triggered duties that you need to fulfill. Here are three things to know about inadvertent disclosures.
1. When you receive an inadvertent disclosure, you need to act
Under the Indiana Rules of Professional Conduct, you have one ethical duty: to notify the sender. Rule 4.4(b) states: “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” It should be noted that according to the Comment to Rule 4.4, “‘document’ includes e-mail or other electronic modes of transmission subject to being read or put into readable form.”
Different states have different versions of this rule. For example, Kentucky’s version requires the lawyer to refrain from reading the document and to “abide by the instructions of the sender regarding its disposition.” The Indiana Rules of Professional Conduct don’t require any of that. Other law or court orders may apply when you are a victim of an inadvertent disclosure, but the Indiana Rules of Professional Conduct allow you to read away and do not require that you follow the instructions of the sender.
2. Notify the sender
In most instances, the sender will be opposing counsel, but certainly, it could be a third party. This third party may have no idea that it sent you the wrong documents and quite frankly, the third party may not really care about the disclosure and the rules that lawyers have to play by. Nevertheless, notify them anyway.
How should you notify the sender? I would recommend doing it by phone (because that is “prompt” (see below)) and then following up the notification in writing, so you have proof of the notification. What does “promptly” mean? I am not sure. The rule doesn’t give much more guidance, but I would interpret “promptly” as “the sooner the better.”
3. It could be a problem if you have 4,156 emails in your inbox
The notification duties attached to 4.4(b) apply to documents that you “know” about and documents that you don’t know about but “reasonably should know” about. So you have a duty to keep up with what is in your possession. Training staff to help identify what should and should not be in your possession may help matters. Coming up with a prearranged plan on what to do with the inadvertently disclosed document could also be helpful.
I am often asked, “What do I do with the inadvertently disclosed email, document, filing etc., now that I have made a prompt notification in writing?” Good question. The Rules of Professional Conduct don’t tell us. Once you have made the notification, you have fulfilled your ethical obligations. Rules regarding discovery, privilege and court procedure may kick in and give you guidance. If you need help, ask the court.
You could consider sending a thank you note to whomever inadvertently disclosed something to you. The written note could say, “Gee, thanks. Like I didn’t have enough ethical duties placed upon me. Please note that I am promptly notifying you that you sent me the wrong thing. What is your next move? Love, Your Friendly Neighborhood Attorney.” On second thought, don’t send a note like this. Just make your notification prompt and professional, and you will be on the path to avoiding an ethical pitfall.•
• James Bell is an attorney with Paganelli Law Group who practices in criminal defense and also assists lawyers and judges with professional liability and legal ethics issues. He can be reached at [email protected] The opinions expressed are those of the author.