Whoops You've Got Mail
| Publication year | 2001 |
| Pages | 0002 |
GSB Vol. 6, No. 4, Pg. 2. Whoops You've Got Mail
Georgia State Bar Journal
Vol. 6, No. 4, February 2001
Vol. 6, No. 4, February 2001
"Whoops! You've Got Mail!"
By Robert C. Port
With a click of the mouse, your opponent has inadvertently
e-mailed to you a memo outlining case strategy, a summary of
the weaknesses in his case, or other highly sensitive
privileged and confidential information. Or perhaps you are
the unlucky sender of such information to your opponent. As
the sender or recipient of such obviously misdirected email
what are your professional and ethical obligations? Both the
unintended recipient, as well as the attorney responsible for
the disclosure, face a number of competing professional and
ethical goals and obligations in determining the course of
action that should be taken once it has been discovered that
confidential information inadvertently has been disclosed
The sender has breached his duty to preserve and protect his
client's secrets and for doing so, he may face a
professional liability claim from his client. The attorney
who received the misdirected e-mail now has information which
might be very useful in zealously representing his client
but which he might not be able to use because of his
professional and ethical obligations. Although research has
failed to uncover Georgia cases directly addressing
inadvertently misdirected e-mail, a number of cases and
ethics opinions from Georgia and other jurisdictions have
dealt with counsel's responsibility when mail, faxes, and
other privileged communications are misdirected to opposing
counsel. These authorities provide useful analytical models
for determining appropriate courses of action for the sender
and recipient of inadvertent e-mail disclosures. This article
initially considers whether e-mail is an appropriate method
for transmitting privileged information. It then examines the
various professional considerations and ethical obligations
that the sender and the recipient of an inadvertent e-mail
disclosure must evaluate in determining what course of action
to take following the inadvertent disclosure. This article
also discusses the manner in which courts and state bar
associations have addressed the question of whether an
inadvertent disclosure of confidential and privileged
information constitutes a waiver of the attorney-client
privilege, thus permitting the disclosed information to be
used by the recipient. Finally, consideration also is given
to the precautions an attorney should consider taking when
using e-mail, and the possible exposure to malpractice
liability for inadvertent disclosure. An attorney's
ethical and professional obligations require special
consideration of whether e-mail is an appropriate method to
communicate with clients, cocounsel, experts and others on
matters that are subject to the attorney-client privilege
The ability to communicate and send documents and other
attachments instantaneously and with minimal cost has made
e-mail an essential part of law practice, but as with many
new technologies, e-mail is not without risk, including
potential malpractice risk. Both an attorney's duty of
confidentiality and the attorney-client privilege require
counsel to exercise reasonable care to avoid disclosure of a
client's secrets and confidences. Is email a sufficiently
secure means of communication to fulfill these ethical and
professional obligations? Although some of the initial
commentary on the issue of e-mail security concluded that
e-mail was an inappropriate means of communication of
privileged communication, 1 current analysis does not find
fault, per se, with an attorney's use of e-mail for this
purpose.2 The American Bar Association (ABA) specifically
concluded in its Formal Opinion 99-413 that "a lawyer
may transmit information relating to the representation of a
client by unencrypted e-mail sent over the Internet without
violating the Model Rules of Professional Conduct (1998)
because the mode of transmission affords a reasonable
expectation of privacy from a technological and legal
standpoint."3 The ABA concluded that e-mail posed no
greater risk of interception or inadvertent disclosure than
other types of communication, such as mail and telephone, in
which the parties have a reasonable expectation of privacy
for the communications transmitted.4 This conclusion is
consistent with numerous state bar association opinions.5 The
State Bar of Georgia has not formally addressed the issue of
the use of unencrypted e-mail, but, the Formal Advisory
Opinion Board of the State Bar of Georgia responded to a
request from its Computer Law Section for the issuance of an
opinion as to "whether unencrypted electronic mail may
be used to communicate with clients regarding client
matters."6 The Formal Advisory Opinion Board declined to
issue a formal opinion, but stated
unofficially in a September 1999 letter to the Computer Law
Section that "in view of the criminal consequences for
intercepting electronic mail correspondence of others, a
lawyer would clearly be justified in concluding that
correspondence with a client by electronic mail would be
confidential and that the use of such electronic mail in
communicating with a client would not have disciplinary
consequences."7
Both the attorney who accidentally sends a confidential
e-mail to his opponent, as well as the receiving attorney,
are immediately faced with competing ethical and professional
obligations. Attorneys are required to "maintain in
confidence all information gained in the professional
relationship . . . including information the client has
requested to be held inviolate or disclosure of which would
be embarrassing or would likely be detrimental to the
client."8 Indeed, counsel has a statutory obligation not
to disclose confidential communications.9 This is the
fundamental principle in the client-lawyer relationship10
that requires an attorney to protect his communications with
his own client. By sending the misdirected e-mail, counsel
has arguably breached this requirement of confidentiality.
Both the sending and receiving attorney must "zealously
assert" his client's position.11 By misdirecting
confidential e-mail, the sender arguably has failed to
zealously protect his client's interests. In contrast,
the attorney receiving the misdirected e-mail, also having a
duty to zealously assert his client's position, may now
have access to information that can be used to further his
client's interests. Some authorities argue that in
carrying out the obligation of zealous representation of a
client, counsel should be entitled to take advantage of any
error or mistake by an opponent.12 In a case of inadvertent
disclosure, it is the disclosing attorney who arguably has
breached his obligation to preserve the confidences and
secrets of his client, and perhaps he ought to suffer the
consequences of doing so.13 The unintended recipient of an
email must also consider prohibitions against conflicts of
interest.14 If an attorney is placed in the position of
trying to cure his opponent's mistake or to protect his
opponent's inadvertent disclosure of privileged
communications, then he may be faced with the possibility of
taking action that may be in direct conflict with the
interests of his client. Such a conflict raises additional
professional and ethical dilemmas, since the attorney's
response to his opponent's inadvertent disclosure may
create a conflict with his duty of loyalty15 to his client
and possibly require his withdrawal from representation of
that client.16 Nevertheless, if the recipient attempts to use
such inadvertently disclosed information he may cause the
disclosing attorney to move to exclude the evidence17 or to
disqualify receiving counsel,18 which, if successful, may
cause harm to the recipient's client. On the other hand,
the unintended e-mail recipient must insure that he executes
his duty of zealous representation concurrently with those
duties imposed upon him as "an officer of the legal
system and a citizen having special responsibility for the
quality of justice."19 As such, he is expected to act in
a manner that promotes public confidence in the integrity and
efficiency of the legal system and the legal profession.
Indeed, the Georgia Code of Professional Responsibility's
Canons of Ethics exhorted attorneys "to conduct
[themselves] so as to reflect credit on the legal profession
and to inspire the confidence, respect, and trust of . . .
clients and of the public; and to strive to avoid not only
professional impropriety but also the appearance of
impropriety."20 The new Georgia Rules of Professional
Conduct, which replaced the Canons of Ethics on January 1,
2001 include similar aspirational directives.21
ABA Pronouncements Concerning the Obligations of a
Recipient of An Inadvertent Disclosure
In 1992, the ABA recognized that advances in technology had
made it "more likely that through inadvertence
privileged or confidential materials will be produced to
opposing counsel by no more...
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