Transactions with people other than clients (b) An attorney who receives an electronically stored document or information relating to the attorney's client's representation and knows or should reasonably know that the document or electronically stored information was sent inadvertently will immediately notify the sender. RPC 4.4 (b) imposes no obligation to refrain from reviewing the information or even returning it to the sender. As explained below, there are other norms, ethical opinions, denounced decisions, and principles of civility and cordiality that can impose these obligations. However, a New York lawyer who meets the “notify the sender” requirement set out in RPC 4.4 (b) should not be penalized for reviewing and retaining information.
This report covers only New York law, and an attorney practicing outside the state must verify the law in the applicable jurisdictions. Beyond considering what an attorney who appears in a New York State court should do to avoid disciplinary action or sanctions when receiving inadvertently disclosed information, the question arises as to what an attorney should do to defend the principle of confidentiality and preserve the integrity of the judicial process. As explained below, to determine whether to use inadvertently submitted information to the extent permitted by law, an attorney must take into account the mandates of rules 1.1, 1.2, and 1.4.The opinion points out that the rule does not require the receiving lawyer to refrain from examining the material or to comply with the instructions of the referring lawyer. NYCLA has never formally withdrawn formal opinion 730, raising additional questions about appropriate guidance for attorneys from New York.
The opinion explains that neither Rule 4.4 (b) nor any other rule requires the employer's lawyer to notify the opposing lawyer of the receipt of communications. Regardless of the Rules, it doesn't make sense for an attorney who receives inadvertently disclosed information to use it to effectively represent their client. If the lawyer reasonably determines that rules 1.1 (c) and 1.2 (e) do not require the lawyer to use inadvertently submitted information, he may refrain from doing so long as his decision is consistent with the lawyer's competent and diligent search for the client's objectives. New York's Rule of Professional Conduct 4.4 (b), as adopted, does not require the receiving lawyer to refrain from further reviewing the document or to comply with the sender's instructions to destroy or return the document, but rather leaves these matters in the hands of applicable laws, regulations, agreements, judicial decisions and the legal and ethical judgment of the lawyer, making the orientation of the previous ethical opinions that ordered such acts questionable. Rule 4.4 (b) requires an attorney who receives an inadvertently sent document to immediately notify the sender.
The question remains whether an attorney can choose to refrain from using beneficial information when doing so would harm the client and there is no agreement, order, law, rule or supervisory authority in this regard. An attorney who wishes to draft an agreement with rule 502 (d) in federal litigation should consult several sources of guidance before beginning to draft it. Rule 4.4 (b) imposes no obligations or restrictions on the receiving attorney other than requiring him to notify the sender. For the purposes of this Rule, “document or information stored electronically” includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), which are subject to being read or placed in legible form.
He advises firm attorneys and provides analysis and advice on, among other things, ethical issues related to conflicts of interest, privileges and legal issues that arise under the Rules of Professional Conduct.
