By Jeffrey M. Hazen
Assistant Bar Ethics Counsel
Ethical issues commonly arise regarding the receipt of documents related to representation. Two issues seemingly prevail: First, there is the receipt of documents that were inadvertently disclosed by the opposing party, typically during discovery; and second, there are documents that were improperly obtained, typically by the client of the receiving lawyer. The ethical duties and responsibilities of the lawyer in these circumstances are related, but not identical.
As the Bar’s ethics hotline receives a substantial number of calls in this regard, this article explains the receiving lawyer’s duty in each situation.
It is common for documents to be inadvertently disclosed to an opposing party in litigation. This happens most often when a document is unintentionally included in a discovery response and can happen with misdirected e-mails or facsimiles. The Professional Ethics Committee addressed this issue in Ethics Opinion 93-3. The committee stated that the receiving attorney’s ethical obligation, upon realizing that a document has been inadvertently sent, is to “promptly notify the sender of the attorney’s receipt of the documents.” As to whether the attorney-client privilege is waived by the inadvertent disclosure, permitting subsequent use by the receiving party, the committee determined that these are questions of fact and law, not ethics. For a discussion of the legal question of waiver by inadvertent disclosure, see General Motors Corp. v. McGee, 837 So. 2d 1010 (Fla. 4th DCA 2002).
Subsequent to 93-3, the Supreme Court of Florida adopted Rule 4-4.4(b). The rule 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.”
The comment to the rule elaborates: “Subdivision (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, ‘document’ includes e-mail or other electronic modes of transmission subject to being read or put into readable form.
“Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See rules 4-1.2 and 4-1.4.”
Thus, the rule requires that the receiving lawyer notify the sender of the document. The rule makes no requirement of the receiving lawyer other than notification. The comment echoes 93-3 in its statement regarding the receiving lawyer’s duty to return the document and future use. Additionally, whether the receiving lawyer may be disqualified for reading and/or using the document is not a matter of ethics. Such questions are legal rather than ethical and ultimately must be determined by courts. However, the comment does note that the receiving lawyer may voluntarily return the document. The decision to return the document should be made in consultation and communication with the client.
Subsequent to the enactment of 4-4.4(b), the committee faced an issue related to that in 93-3. In Ethics Opinion 06-2, the committee addressed the situation where a lawyer inadvertently receives information through metadata in an electronic document. The committee cited to 4-4.4(b) and described the duties of both sending and receiving parties. The sending lawyer must take reasonable steps to protect confidential information sent by electronic means, including such information contained in metadata. The receiving lawyer’s “concomitant obligation” is to “not try to obtain from metadata information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient.” Implicit in this requirement is the fact that metadata is not readily available in a received document. Rather, there must be some affirmative effort by the receiving party to mine the information. Finally, the committee noted that the obligations set forth in 06-2 may require a lawyer’s continuing education in the use of technology as it relates to sending and receiving electronic documents.
Recently, the Fourth DCA addressed the inadvertent disclosure issue in an employment discrimination case. In Nova Southeastern University, Inc. v. Jacobson, 25 So. 3d 82 (Fla. 4th DCA 2009), Nova filed a motion for protective order after counsel for Nova faxed a letter which the plaintiff received, read, and copied after discovering it in a fax machine. The main thrust of the opinion analyzes the factors to be considered in determining whether the attorney-client privilege was waived as a result of the inadvertent disclosure (the court ultimately found that the trial court “departed from the essential requirements of the law in evaluating the relevance test factors for waiver of attorney-client privilege based upon inadvertent disclosure” and remanded for a new hearing). One of the factors to be applied is “whether the overriding interests of justice will be served by relieving the party of its error.”
As part of its interests of justice analysis, the court discussed whether the plaintiff and her counsel complied with 4-4.4(b) upon receiving the document. The court found that the plaintiff’s attorney “clearly had to know that the letter was intended to be a confidential communication.” Thus, plaintiff’s counsel was required by the Rules of Professional Conduct to notify counsel for Nova of the inadvertent disclosure. In finding that counsel’s failure to notify should be considered, the court concluded that “the interests of justice require that the Rules of Professional Responsibility be honored.” Thus, as the analysis demonstrates, courts do consider compliance with ethics rules in determining legal issues. See also Chandris, S.A. v. Yanakakis, 668 So. 2d 180 (Fla. 1995).
Related to the inadvertent disclosure issue is the situation where documents are improperly obtained by the opposing party. Unlike inadvertent disclosure, there is no ethics rule that specifically addresses this situation. However, the Professional Ethics Committee has addressed the issue directly.
In Ethics Opinion 07-1, an attorney representing a party in a divorce action received documents taken by the client from the spouse’s office and computer. The attorney segregated what were believed to be documents containing attorney-client privileged information. The attorney did not review these documents. The attorney was aware, but not in possession, of documents taken by the client from the spouse’s car. Unsure of the “obligation of disclosure and/or to return the documents” to opposing counsel, the inquiring attorney sought an ethics opinion. The committee acknowledged Rule 4-4.4(b), but concluded that the facts were distinguishable from those contemplated by the rule, noting that the rule is aimed at inadvertent disclosure, not documents deliberately obtained from the opposing party without permission.
Despite the lack of a specific rule on point, the committee determined that several rules were relevant, including 4-1.6 (confidentiality); 4-4.4(a) (improper methods of obtaining evidence); 4-1.2(d) (assisting a client in criminal or fraudulent conduct); and 4-8.4 (general misconduct rule). The committee also cited to The Florida Bar v. Hmielewski, 702 So. 2d 218 (Fla. 1997). In Hmielewski, the Florida Supreme Court upheld a referee’s findings of fact and ordered a three-year suspension where Hmielewski knowingly used documents improperly obtained by the client. Finally, the committee cited cases and ethics opinions from other jurisdictions, all of which generally required some sort of disclosure of possession to the opposing party.
After analyzing the relevant rules and decisions, the committee set forth a lawyer’s obligations. As an initial matter, the lawyer must discuss the potential that the client needs criminal law representation. The lawyer must discuss with the client the potential for the court to disqualify the lawyer, as courts maintain supervisory power to disqualify in such situations. The lawyer should also advise the client that the lawyer may be subject to sanctions by the court. As an ultimate matter, the lawyer must inform the client that the improperly obtained documents may not be “retained, reviewed, or used without informing the opposing party that the inquiring attorney and client have the documents at issue.” If the client refuses to consent to disclosure, the lawyer must withdraw from representation.
A recent case from the Fifth DCA illustrates the practical application of 07-1. In Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010), a mother in a domestic action came into possession of a USB flash drive that contained electronic files, including privileged and work product information. While the appellate court did not detail how the mother came into possession of the USB drive, it found that there was sufficient evidence that it was improperly obtained.
After obtaining the USB drive, the mother retained a law firm which reviewed the information and subsequently used the information to draft and file a petition to vacate a previous modification order. Counsel for the father demanded return of the drive. Rather than returning the drive, counsel for the mother filed its contents in the court file, as well as delivering the drive to law enforcement. The father then filed an emergency motion seeking return of the drive, disqualification of the mother’s counsel, and sanctions. An evidentiary hearing ensued after which the trial court made findings. These findings included the fact that the drive was illegally obtained and contained attorney/client communications and notes, work product, and other confidential information. The trial court also found that despite the fact that it was readily apparent that the documents had been improperly obtained and contained attorney/client communications, the mother’s counsel spent “in excess of 100 hours” reviewing the documents. The documents reviewed set forth a “complete history and chronology of strategy . . . spanning the near decade-long litigation.”
In addition to disqualifying the mother’s counsel because “an informational advantage was obtained,” the trial court struck the mother’s petition, ordered the information in the court file sealed, enjoined the mother from further using the information, and reserved jurisdiction to determine attorneys’ fees. The mother and her counsel were also ordered to indemnify the father for any damage he might suffer from improper use of the information. The mother appealed only the disqualification, contending that this remedy alone was sufficient. Affirming the trial court’s disqualification of the mother’s counsel, the appellate court acknowledged that disqualification is an “extraordinary remedy” but found that the “tactical advantage” gained through the improperly obtained information justified its use. In upholding such a remedy, the appellate court cited to 07-1 and its requirements, seemingly juxtaposed with the conduct of the mother’s counsel.
Although the requirements of the lawyer are different depending on whether information has been inadvertently sent as opposed to improperly obtained, the underlying fundamental requirement is the same. In either situation, notification of the opposing party is paramount. As to inadvertently sent documents, the opposing party must be notified of receipt pursuant to rule 4-4.4(b). Regarding the improperly obtained document, the opposing party must be notified prior to review and in order for the receiving lawyer to continue representation. Absent notification in either instance, the receiving lawyer is subject to discipline.