What do lawyers do with inadvertently sent documents?

Byline: Lee Dryden

The Michigan Supreme Court is mulling a proposed professional conduct rule amendment that would define the responsibilities of a lawyer who receives a document that was inadvertently sent.

The court heard comments on proposed changes to MRPC 4.4 at a Sept. 20 public hearing. The proposal was submitted by the State Bar of Michigan.

The proposed addition to MRPC Rule 4.4 states: "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."

The amended Comment accompanying the rule states that 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."

Additional proposed language in the Comment includes: "If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.

"Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived."

The staff comment included with the proposed amendment provides background on the issue: The court adopted MCR 2.302(B)(7) in 2008 to address the issue of discovery material inadvertently transmitted, and that rule requires the inadvertent recipient to return or destroy the alleged protected material, and may promptly submit the material to the trial court for a determination of the claim. To the extent that the final paragraph of the proposed new comment language apparently leaves such a decision to the discretion of the lawyer, this proposed new language may conflict (or at least exist in tension) with the existing language in MCR 2.302(B)(7).

The last paragraph of the Comment in the proposal states: "Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it...