Hawaii Bar Journal
April 2011 #2.
Raising the Bar in Ethics
Hawaii State Bar JournalApril 2011Raising the Bar in EthicsON PROTECTING INADVERTENTLY SENT COMMUNICATIONS: WHY THE PROPOSED RULES WILL LEAVE YOU TO FEND FOR YOURSELVES
The Hawai'i Supreme Court has proposed to revise HRPC Rule 4.4 to address the inadvertent receipt by a lawyer of a document not intended to be sent to him or her. It has done so by adding a new section that requires a recipient who "knows or reason ably should know that the document was inadvertently sent" to promptly notify the sender.
Hawaii Disciplinary Board Formal Opinion No. 39 presently says that a lawyer who receives on an unauthorized basis materials of an adverse party that the lawyer knows to be privileged or confidential, should either refrain from reviewing the materials or review them only to the extent required to determine how appropriately to proceed. The lawyer should then notify the adversary's lawyer that the lawyer has such materials and should either follow the instructions of the adversary's lawyer with respect to the disposition of the material or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court. By extension, this likely means that even if a lawyer receives an inadvertentlysent document, like an errant fax transmittal, that he knows or reasonably should know to have been mistakenly sent, he has the same responsibilities as to the disposition of that document.
The proposed rule, however, will change at least the the circumstance where a lawyer receives an inadvertently-sent document and substantially cut back on the receiving lawyer's ethical responsibilities.(fn1) The receiving lawyer must only promptly notify the sending lawyer of his receipt of the inadvertently-sent document. Nothing more, nothing less.
Comment  to the newly-proposed rule says, "Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived ." Comment  states, "Some lawyers may choose to return a document unread, ... . the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer."