The Florida Bar

Ethics Opinion

Opinion 93-3

February 1, 1994
Advisory ethics opinions are not binding.
An attorney who receives confidential documents of an adversary as a result of an inadvertent
release is ethically obligated to promptly notify the sender of the attorney’s receipt of the
[Note: Since this opinion was adopted, the Supreme Court of Florida adopted Rule 44.4(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
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.