From the Multnomah Lawyer: The Corner Office | Professionalism November 2019
Today’s discussion is about the receipt of inadvertently sent documents and, in particular, whether a professional lawyer may simply “send them back” as so many of us were instructed by our mentors to do. The typical scenario at hand involves privileged material being produced by the opposing attorney in discovery. Even recalling their mentor’s advice, an ethical lawyer should recognize this situation as complex and approach it with candor both to client and to opposing counsel.
The ethical rule that governs this situation is the picture of simplicity: A lawyer receiving an inadvertently sent document shall notify the sender. Oregon RPC 4.4(b). Formal opinion 2005-150 (OSB 2015 rev) confirms that, so long as the document is inadvertently sent, the recipient’s ethical duty under this particular rule begins and ends with the providing of notice. But see formal op 2011- 186 (OSB 2015 rev) (regarding documents sent without authority). Larger questions about what the receiving lawyer might and might not do with an inadvertently sent document have been left to the application of other ethical rules, to laws outside the RPCs and to concepts of professionalism.
Rule 4.4(b) reassures the reader without elaborating the complexities that arise from other ethical rules that require adherence to court orders and rules, which may impose very different and more sweeping obligations than does 4.4(b) itself. Under the MBA Commitment to Professionalism, our obligations include “support[ing] the effectiveness and efficiency of the legal system” and “seeking to resolve matters with a minimum of legal expense to all involved.” In view of the legal battle that may follow our decision to try to use the accidentally sent materials, a client may be well advised to follow the time-honored rule passed down by our elders.
And therein lies the key. This decision - what to do with inadvertently sent documents - may lie with the client and not with counsel. Recall that clients decide the objectives of representation, and their lawyers decide the means (Oregon RPC 1.2). If the contents of the documents are of a nature that they might change the objectives of the representation, then the decision of what to do with them, by all rights, belongs to the client. But, if the document is subject to a protective order, your ability even to describe it to the client may be limited.
And so, a protocol emerges. First, read the local, state-level and federal rules that apply to your case, as well as any applicable protective or other court orders. Be sure you are following them all. Second, call your opposing counsel. Tell them you have received what appears to be an inadvertently sent document and offer to send them a copy. Confirm that they understand the complexities: that you have given them their 4.4(b) notice, that the responsibility to take action lies with them and not with you, but that you are doing what you can to limit both parties’ legal costs in the meantime. Try to determine whether they are notifying their insurance carrier; your client won’t have insurance coverage for this.
Finally, call your client. Confirm this conversation and get confirmation in writing from them as you deem necessary or appropriate. Discuss the situation with candor, which I always find is my best friend in these types of circumstances. Tell them it may be possible to use this document (if that’s your judgment), but the cost may be very high both in terms of expense and in terms of lost credibility with the court and with the other side. Tell them that there may be an insurance company covering the other side’s fees. If the document is relatively meaningless, explain that to them and tell them that it’s your decision what to do and you’re sending the document back.
If the document really is one that potentially changes the objectives of representation, then let the client make the decision, as it is their right to do. But advise them - if you think it’s true - that the battle is not worth waging in terms of the damage it will do to relationships, and an uncertain outcome. And advise them - again, if it’s true – that their decision may lead to the need to find a new lawyer if you can’t go forward. It’s a good time to remind your client and yourself that you don’t have to continue representation of a client whose choices embarrass you or make you uncomfortable.
The Corner Office is a recurring feature of the Multnomah Lawyer and is intended to promote the discussion of professionalism taking place among lawyers in our community and elsewhere. While The Corner Office cannot promise to answer every question submitted, its intent is to respond to questions that raise interesting professionalism concerns and issues. Please send your questions to firstname.lastname@example.org and indicate that you would like The Corner Office to answer your question. Questions may be submitted anonymously.
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