New York’s Shift From Code to Rules Pared Duty Regarding Misdirected Docs

By Joan C. Rogers  

A lawyer who receives a document that was sent by mistake must promptly notify the sender but has no other ethical obligation beyond the normal duty of truthfulness, the New York City bar association's ethics committee has advised (New York City Bar Ass'n Comm. on Professional Ethics, Op. 2012-1).

In light of New York's adoption of Rule 4.4(b) when it shifted to a version of the Model Rules of Professional Conduct in 2009, the committee withdrew an earlier opinion that required lawyers to stop reading a misdirected document and to return it or destroy it on request. But a lawyer still may choose to take that route after consulting with the client, the opinion makes clear.

The committee also pointed out that lawyers are required to follow applicable law and that courts have the authority to sanction lawyers for reading an opponent's confidential or privileged information.

In With the New …

The opinion addresses this concise question: “What are the ethical obligations of the lawyer who receives a misdirected document?”

“[S]ubject to applicable law and the responsibility of lawyers to consult with their clients, decisions as to how to use such [misdirected] documents are left to the lawyer's professional judgment.”
New York City Ethics Op. 2012-1

The committee singled out New York Rule of Professional Conduct 4.4(b) as the only ethics rule on point, other than the normal duty of truthfulness set out in Rule 4.1 (truthfulness in statements to others) and Rule 8.4 (misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation).

Rule 4.4(b) provides 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.”

Under this rule, the committee said, “a lawyer who receives such a document must promptly notify the sender (in addition to identifying and following applicable substantive law), but has no other obligations under the New York Rules of Professional Conduct with respect to the retention, return, destruction, review or use of the document or its contents.”

Citing a comment to Rule 4.4 adopted by the New York State Bar Association, the committee determined that, “subject to applicable law and the responsibility of lawyers to consult with their clients, decisions as to how to use such documents are left to the lawyer's professional judgment.” The NYSBA comment cites Rules 1.2 and 1.4, which address, respectively, allocation of authority between attorney and client and lawyer-client communication.

As for what the “applicable law” is, the committee said that issue is outside its purview. Nevertheless, it noted that according to the NYSBA's comments to the rule, a lawyer who continues reading a document that contains confidential or privileged information may be subject to court-imposed sanctions, including disqualification and evidence preclusion.

… Out With the Old.

The committee withdrew its previous pronouncement on this subject, New York City Ethics Op. 2003-4 (2003), to the extent it imposed obligations beyond the duty now specified in Rule 4.4(b).

That opinion, the panel explained, was based on New York's former Code of Professional Responsibility, which had no specific rule on point and was supplanted three years ago by the new Rules of Professional Conduct.

The 2003 opinion advised that the receiving lawyer had obligations to promptly notify the sending attorney, to refrain from examining the communication, and to return or destroy the communication if asked. In limited circumstances, it said, the lawyer could submit the communication for in camera review by a tribunal, and was not ethically barred from using information gleaned before having reason to know that the communication contained confidences or secrets not intended for the receiving lawyer.

The new opinion leaves the door open for lawyers to determine, after having considered Rules 1.2 and 1.4, that it is right under the circumstances to take action consistent with the old opinion, such as destroying or not reviewing or using the misdirected communication.

The updated guidance does not in itself prohibit a lawyer from making that determination, the committee said.

Finer Points.

The committee offered several other observations on the misdirected document issue:

• A “document” under Rule 4.4(b) includes not only paper correspondence but also emails, voicemails, and other communications that may be read or transcribed.

• Rule 4.4(b) applies whether the sender is a lawyer, a client, a third party, or a tribunal.

• The rule does not apply to documents that are deliberately sent to a lawyer, such as a document that someone other than the original custodian improperly obtains and sends to the lawyer on purpose.

• Metadata associated with a document is not covered by Rule 4.4(b) and is discussed in New York State Ethics Op. 782, 21 Law. Man. Prof. Conduct 39 (2004).

• The requirement to “promptly” notify the sender means as soon as is reasonably possible.

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