52 Hofstra Law Review 175 (2013) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378492##; Chapman University Law Research Paper No. 13-17. Available at SSRN: http://ssrn.com/abstract=2378492
From the author’s abstract
“When lawyers receive a document — whether hard copy or an electronic document — that they know the adversary sent them inadvertently (for example, a fax or email mistakenly sent to an adversary lawyer instead of to co-counsel), the black letter rule in Rule 4.4 requires the lawyer to notify the other side. However, this Rule does not require the receiving lawyer to return the document unread. Whether the receiving lawyer can use that document depends, in essence, on the law of evidence. If the court decides that the document lost its privileged status (perhaps because the sending lawyer acted unreasonably), the receiving lawyer can use the document.”
The author discusses Rule 4.4, the several ethics opinions dealing with inadvertent disclosure of documents and the new 2012 Comment to Rule 4.4. imposing lawyers an obligation “to promptly notify the sender” only when “the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer”. The “paper explains” that while “the changes in the Comments to Rule 4.4 treat metadata differently. There is no justification for treating metadata differently”.
Model Rules of Professional Conduct 1.1; 4.4, 7.2, 7.3
Referenced Authority
- American Bar Association Amendments to Model Rule 1.6
- American Bar Association Amendments to Model Rule 1.1
- ABA Opinion 2006-442
- ABA Opinion 11-459
- ABA Opinion 11-460
The full text available at http://papers.ssrn…