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An employer's lawyer who receives copies of e-mails an employee has exchanged with her attorney through a workplace device or account is not required by the Model Rules of Professional Conduct to notify the employee's attorney, the ABA's ethics committee declared Aug. 4 (ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 11-460, 8/4/11).
The opinion recognizes, however, that in some jurisdictions a notification duty may exist under other law such as court decisions or civil procedure rules. When no other law imposes a reporting obligation, it's up to the employer to decide whether to tip its hand after counsel explains the pros and cons, the committee advised.
The opinion examines a hypothetical scenario in which an employer that has been sued by an employee copies the contents of the employee's workplace computer for possible use in defending the lawsuit, and provides copies to its outside counsel.
Upon review, the employer's counsel sees that some of the employee's e-mails are labeled as confidential attorney-client communications. The opinion addresses whether the employer's counsel must notify the employee's lawyer that the employer has accessed this correspondence.
Model Rule 4.4(b) provides that a lawyer who receives a document relating to a client's matter must promptly notify the sender if the lawyer “knows or reasonably should know that the document was inadvertently sent.”
This rule does not expressly apply to the hypothetical scenario, the committee observed, because “a document is not ‘inadvertently sent' when it is retrieved by a third person from a public or private place where it is stored or left.”
The phrase “inadvertently sent,” the committee said, refers to an accidental transmission to an unintended recipient, as occurs when an e-mail is misaddressed or when a document is accidentally attached to an e-mail or accidentally included with materials produced in discovery.
Nor should Rule 4.4(b) be stretched beyond its literal language to cover this scenario, the committee concluded. It pointed to two opinions it has issued since the enactment of the rule in 2002, in which it declined to interpret any model rule as requiring notice to opposing counsel in two other situations.
See ABA Formal Ethics Op. 06-442, 22 Law. Man. Prof. Conduct 555 (2006), which advised that the Model Rules do not forbid lawyers to review and use metadata embedded in electronic documents sent by others, and ABA Formal Ethics Op. 06-440, 22 Law. Man. Prof. Conduct 358 (2006), which withdrew a 1994 opinion addressing the professional obligations of lawyers who receive an adversary's confidential materials from an unauthorized source.
Both of those opinions reasoned that the recent addition of Rule 4.4(b) evidenced the drafters' intention to set no specific restrictions on a receiving lawyer's conduct other than what is set out in the express terms of Rule 4.4(b).
The committee acknowledged, however, that some court decisions have expressed a different position on the obligations of an employer's lawyer whose client turns over privileged communications located on a workplace system or device.
Along with Chamberlain Group Inc. v. Lear Corp., 270 F.R.D. 392 (N.D. Ill. 2010), the committee cited Stengart v. Loving Care Agency Inc., 990 A.2d 650, 26 Law. Man. Prof. Conduct 221 (N.J. 2010), which held that an employer's attorneys acted improperly when they scrutinized e-mails that an employee exchanged with her lawyers on her employer-issued computer via her personal, password-protected e-mail account, rather than notifying the employee's attorneys.
The committee noted that courts may invoke their supervisory authority to require lawyers in litigation to notify opposing counsel when their client provides an opposing party's attorney-client communications retrieved from the client's computer system. Alternatively, civil procedures rules governing discovery may require the employer to notify the employee, the opinion notes.
To the extent that courts recognize a legal duty in this situation, as did the court in Stengart, “a lawyer may be subject to discipline, not just litigation sanction, for knowingly violating it,” the opinion states, citing the prohibition set out in Model Rule 3.4(c) against knowing disobedience of court rules.
The committee advised that if the law governing disclosure is unclear, the employer's lawyer may disclose that the employer has retrieved the employee's attorney-client communications to the extent the lawyer reasonably judges disclosure is needed to comply with relevant law.
Model Rule 1.6(b)(6) generally forbids disclosure of information about a client's representation without informed consent, but permits disclosure that a lawyer reasonably believes is necessary to comply with other law or a court order, the opinion explains.
The committee made clear that if no law can reasonably be read as establishing a notification duty, the decision whether to disclose possession of the e-mails must be made by the employer-client. The employer's lawyer must explain the implications of disclosure and the available alternatives as needed for the employer to make an informed choice, the committee said.
Even when there is no clear reporting duty, the committee stated, it often will be in the employer-client's best interest to give notice and obtain a judicial ruling about the admissibility of the e-mail communications before trying to use them and, if possible, even before the employer's lawyer reviews them.
This course of action minimizes the risk of disqualification or some other sanction if the court ultimately concludes that the e-mails are privileged and inadmissible, the committee explained.
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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