February 1, 1994
[Note: Since this opinion was adopted, the Supreme Court of Florida adopted Rule 4-4.4(b), which states that "[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 has come to the attention of the Professional Ethics Committee that a growing number of Florida Bar members have faced ethical problems in connection with the inadvertent receipt or disclosure of attorney-client or work product privileged documents from an adversary. Such an inadvertent disclosure might occur as part of a document production, a misdirected facsimile or electronic mail transmission, a "switched envelope" mailing, or misunderstood distribution list instructions.
Whether the disclosure was inadvertent, and whether inadvertent disclosure impliedly waives the attorney-client privilege or work product privilege, are questions of fact and law that are beyond the authorized scope of an ethics opinion. Florida Ethics Opinion 74-7. For a discussion of the legal issues, see, e.g., R.Franco & M.Pringle, The Inadvertent Waiver of Privilege, 26 Tort & Ins. L.J. 637 (1991); Meese, Inadvertent Waiver of the Attorney-Client Privilege, 23 Creighton L. Rev. 513 (1990); W. Ayers, Attorney Client Privilege: The Necessity of Intent to Waive the Privilege in Inadvertent Disclosure Cases, 18 Pac. L.J. 59 (1986); J. Grippando, Attorney-Client Privilege: Implied Waiver Through Inadvertent Disclosure of Documents, 39 U. Miami L. Rev. 511 (1985).
The Committee is of the opinion that an attorney, upon realizing or reasonably believing that he or she has received a document or documents that were inadvertently misdelivered, is ethically obligated to promptly notify the sender of the attorney's receipt of the documents. It is then up to the sender to take any further action.