NEW YORK -- A lawyer who receives a letter, fax, e-mail or other communication that the lawyer knows or reasonably should know was transmitted by mistake must promptly notify the sender, pursuant to Rule 4.4(b) of the New York Rules of Professional Conduct, and follow any other applicable law, states a formal opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2012-1).
That said, according to the opinion, several aspects of Rule 4.4(b) require further attention. First, as noted in the New York State Bar Association’s Comments to Rule 4.4(b), documents “include not only paper correspondence but also emails, voicemails and other communications that may be read or transcribed. Nor does it matter whether the sender is a lawyer, a client, a third party, or even a tribunal; in each case, the rule still attaches.”
Second, the rule addresses only the obligations that arise with respect to documents that are “inadvertently sent” and “would not apply if, for example, a lawyer obtained possession of a document that was deliberately sent to the lawyer’s attention (including, for instance, a document obtained, perhaps improperly, and then transmitted by a person other than its original custodian). Those scenarios would implicate different ethical considerations and/or questions of law, and may require a different response,” the opinion states.
Third, the rule requires the lawyer to notify the sender “promptly.” According to the opinion, “This means as soon as reasonably possible, as the rule is designed in part to eliminate any unfair advantage that would arise if the lawyer did not provide such notice.”
The opinion further advises that “Counsel would do well, however, to remember the New York State Bar Association comment that ‘a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion.’”
The opinion notes that the City Bar’s previous opinion on the topic was issued when the New York Code of Professional Responsibility was in effect, and that the Code contained no provision directly addressing a lawyer’s responsibility with respect to inadvertently sent documents. Lawyers accordingly took guidance from judicial decisions and bar association opinions.
The new opinion states, “Formal Opinion 2003-04, which was based on several Code provisions, was issued in that context. In certain respects, it imposed standards of conduct that go beyond the standards indicated by the text of Rule 4.4(b), which, along with the rest of the Rules of Professional Conduct, became effective on April 1, 2009. In particular, Formal Opinion 2003-04 required a lawyer who received a misdirected communication not only to notify the sender, but also, with limited exceptions, to refrain from reviewing the communication and to return or destroy it on request. To the extent that it imposes standards that go beyond the standard indicated by Rule 4.4(b), Formal Opinion 2003-04 is withdrawn. However, there may arise circumstances under which a lawyer, having considered Rules 1.2 and 1.4, determines that conduct that would be consistent with Formal Opinion 2003-04, such as destroying or not reviewing or using the communication, is right under the circumstances. Rule 4.4(b) and the present Formal Opinion should not be construed as per se prohibiting a lawyer from making that determination.”
May 1, 2012 - 3:27pm