§9.2 - Inadvertent Production

• Jurisdiction: Washington

§9.2 INADVERTENT PRODUCTION

Few areas in the law of lawyering have seen as near constant evolution over the past 25 years as inadvertent production. Ironically, the principal reason is the equally constant evolution of technology during that same period. When paper reigned supreme, courts were much less forgiving of lawyers who inadvertently produced confidential communications that were labeled plainly with law firm or general counsel letterhead. As

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communications between lawyers and their clients moved increasingly to electronic form, however, it both increased the volume of documents needing to be screened for privilege and made the screening process more difficult and expensive. That technological change, in turn, has affected the development of the law of inadvertent production on ethical duties, procedural rules, and evidentiary privilege

(1) Ethical duties

Before the Washington RPCs were amended in 2006, there was no specific ethics rule governing inadvertent production. Instead, ethical duties were largely defined by a series of American Bar Association formal and Washington State Bar Association informal ethics opinions. On the former, ABA Comm. on Prof'l Ethics & Grievances, Formal Op. 92-368 (1992), and ABA Comm. on Prof'l Ethics & Grievances, Formal Op. 94-382 (1994), counseled that a lawyer receiving what appeared to be inadvertently produced privileged or otherwise confidential materials from an opponent had a duty to notify the lawyer on the other side. On the latter, WSBA Advisory Op. 1544 (1993) found no duty to notify, but WSBA Advisory Op. 1779 (1997) later adopted the ABA opinions on notification as the preferred position.

Note: Since 2010, the WSBA no longer distinguishes between "informal" and "formal" ethics opinions. Rather, they are now all called "advisory" opinions. www.wsba.org/for-legalprofessionals/ethics/about-advisory-opinions.

In 2002 and 2003, the ABA significantly amended its influential ABA Model Rules of Professional Conduct (1983). See ABA, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2013 at 577-84 (2013) (ABA Legislative History). That process produced a new model rule, Model Rules of Prof'l Conduct r. 4.4(b), and new comments to the rule, Model Rules of Prof'l Conduct r. 4.4 cmts. 2 & 3. The ABA Model Rule was then broadened in 2012 to include both paper documents and "electronically stored information." ABA Legislative History at 582-83. ABA Model Rules of Prof'l Conduct r. 4.4(b) is focused on notification: "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender." Model Rules of Prof'l Conduct r. 4.4 cmt. 2 leaves to procedural law whether any other actions are necessary and to evidence law whether privilege has been waived. Model Rules of Prof'l Conduct r. 4.4 cmt. 3, in turn, commits the voluntary

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return of inadvertently produced material to the receiving lawyer's discretion (again subject to procedural and evidentiary law). In light of these changes, the ABA withdrew opinions 92-368 and 94-382 and replaced them with two new opinions ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 05-437 (2005), and ABA Comm. on Ethics & Prof'l Responsibility, Formal Op....