4.4:300 RECEIPT OF INADVERTENTLY TRANSMITTED DOCUMENTS

• Jurisdiction: Arizona

4.4:300 Receipt of Inadvertently Transmitted Documents

ER 4.4(b), first adopted in 2003, imposes two separate but related obligations on a lawyer who receives a document or electronically stored information and knows or reasonably should know that the document or electronically stored information was sent to that lawyer inadvertently: (1) an obligation to promptly notify the sender; and (2) an obligation to preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures. The latter requirement, as noted earlier, is not contained in MR 4.4(b). See Keith Swisher, The Short History of Arizona Legal Ethics, 45 Ariz. St. L.J. 813, 838-39 (2013) (discussing this and other differences between the Arizona ethical rules and the Model Rules). As the Comment to this aspect of ER 4.4 explains:

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this ER requires the lawyer to stop reading the document, to make no use of the document, and to promptly notify the sender in order to permit that person to take...