Opposing party's privileged or confidential documents.

• Jurisdiction: United States
• Author: Pope, Daniel J.
• Date: 01 October 1997

To know that we know what we know, and that we do not know what we do not know; that is true knowledge.

--Confucius

OVER the past few months, you have been fighting in a heated battle of high-stakes litigation with opposing counsel over discovery issues. Time after time, you have sent letters demanding discovery of certain documents, while opposing counsel insist that they have complied with the requests. One morning, however, you walk into your office and find a mysterious package addressed to you, with no return address, on your desk. Opening the package, you discover that it contains confidential documents belonging to the opposing party. Some of the documents are privileged, and some are responsive to your seemingly disregarded discovery requests. With these documents, you will surely win your case.

In disbelief, you have no idea how these documents were sent to you. Someone must have done so either by mistake or by surreptitious conduct. Perhaps, the mysterious sender was someone who wanted to correct the opposing counsel's improper, less-than-fair conduct during discovery.

Caught in this ethical dilemma, you wonder if can you use these documents. Should you read through them? Should you notify opposing counsel? Must you return them? Could you be disqualified from the case because you have these documents? What should you do?

The American Bar Association and state bar ethics committees and courts throughout the United States have issued differing opinions on the disposition of the inadvertent or unauthorized disclosure of privileged or confidential documents.

Ethical obligations

Granted, the first inclination might be to use the opposing party's confidential documents, especially when they could help win the case. But lawyers have an ethical obligation under Rule 1.6 of the Model Rules of Professional Conduct to honor the confidentiality of a client's documents. Even though that particular client may not be your client, as an attorney, you cannot ignore the confidential nature of the documents. So what should you do?

One option is to refrain from reading the privileged or confidential materials and return them. However, this ethical choice, even though it may ultimately benefit the legal profession, somehow pales in comparison to the immediate benefits of using the documents.

Another option is to review and use the documents. No ethics rule specifically prohibits you from keeping the documents inadvertently sent to you. However, lawyers should not need a rule telling them that it is inappropriate and unethical to refuse to return something that clearly belongs to another.(1) Exploiting another's inadvertent error is inappropriate and unprofessional. Yet, some attorneys would justify this behavior by arguing that they have an ethical obligation to represent their client zealously.

Lawyers who fail to maintain a proper balance between the duty to uphold the system of justice and the obligation to promote the interests of individual clients are largely to blame for much of the problems with the legal profession's present image.(2)

ABA opinions

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued two opinions on an attorneys' ethical obligations when they receive an opposing party's confidential materials. Formal Opinion 92-368 advised on the issue of when someone inadvertently sends an attorney privileged or otherwise confidential materials belonging to an opposing party. The committee concluded that lawyers who receive such confidential materials not intended for them have a professional responsibility, on realizing the error, to avoid reviewing such materials any further. The attorney then should notify the sending counsel, if that person is unaware of the error, and follow sending counsel's directions as to the handling and disposition of the materials.

In the situation where lawyers receive materials of an adverse party that they know are privileged or confidential, from a person not authorized to send them, the ABA committee advises in Formal Opinion 94-382 that the lawyer should refrain from reviewing such material. The committee held that attorneys have an obligation to notify their adversary's lawyer that they possess such materials and to follow instructions of the adversary's lawyer, or, in the case of a dispute, refrain from using the materials until a definitive resolution of their proper disposition is obtained from a court. The committee analogized this situation to its previous decision in 92-368...