When Emails Go Astray
by Christian Stiegemeyer, Director of Risk Management
The Bar Plan Mutual Insurance Company
When lawyers use e-mail to communicate attorney-client privileged information there is the risk that the document could be forwarded to an unintended recipient. E-mail disclaimers commonly warn the recipient that the communication contains confidential, privileged information intended only for the addressee, not to read, copy, or disseminate the information unless the recipient is the addressee, and immediately contact the sender if the recipient received the transmission erroneously.
But if privileged documents are inadvertently e-mailed to opposing counsel, does a disclaimer protect them from being read, used or disseminated?
Maybe. Maybe not. A disclaimer is not a panacea and will not protect the privilege if the sending lawyer acted carelessly in handling the document.
Whether the privilege will still protect the documents may rest on a court's application of the elements set out in Gray v. Bicknell, 86 F.3d 1472 (8th Cir. 1996), which involved privileged documents inadvertently included in a discovery response.1 Gray was decided on the basis of how the court thought a Missouri court would rule in similar circumstances. "[I]n diversity actions, state law determines the existence and scope of the attorney-client privilege." Id. at 1482.
The court used five factors to determine whether the attorney-client privilege was waived: 1) were reasonable precautions taken to prevent disclosure; 2) the number of disclosures; 3) the extent of the disclosures; 4) the promptness taken to rectify the disclosure; and, 5) whether relieving the party of its error would serve the overriding interest of justice.
Under the Gray analysis, if a court finds a waiver has occurred and the documents are no longer privileged, it could, in its discretion, further determine whether the privilege was also waived for related, but-as-yet undisclosed, documents. Id. at 1484.
The lawyer who receives inadvertently faxed or e-mailed documents has important issues to consider as well. While the first impulse may be to use the information to the client's full advantage, a go-slow approach may be more prudent, as rashly charging forward in reviewing or using the material may result in discipline and/or disqualification.
In Informal Opinion 940133 the Missouri Office of Chief Disciplinary Counsel concluded that an attorney whose client was given unsolicited confidential documents from a member of opposing counsel's staff should ask the client's permission to notify opposing counsel that the attorney had the documents and how they were obtained. If the client did not consent to this, the attorney should withdraw from the representation and return the documents to the client.
ABA Formal Opinion 92-368 decided that under the Model Rules a lawyer who inadvertently received privileged or confidential material should refrain from examining the material, notify the sending lawyer, and comply with the sending lawyer's instructions on further disposition of the material. This opinion has been adopted by at least one court as the standard of conduct for an attorney who inadvertently receives privileged or confidential material.2
An important consideration when determining whether the privilege was waived or disqualification is appropriate is the steps taken by the sender to protect the information and alert the recipient that the information is privileged and/or confidential.
With that in mind, one way to further protect the information is to e-mail all documents as attached files. The text of the e-mail itself would contain only the disclaimer. If the e-mail is mistakenly sent to opposing counsel, the disclaimer would put the lawyer on notice not to open the attached document. If the lawyer ignored the disclaimer, the additional affirmative act of opening the file could lend weight to the argument that opposing counsel should be disqualified, or at least be barred from using the information that was arguably obtained unethically.
Another option would be to negotiate an agreement with opposing counsel at the beginning of the case on how to handle confidential or privileged information inadvertently communicated or produced in discovery. An appropriate standard for such an agreement may be for the parties and their counsel to agree to comply with the requirements of ABA Formal Opinion 92-368 in applicable circumstances.
1 Other courts have noted a distinction in the treatment of documents inadvertently produced in discovery, inadvertently sent to opposing counsel, and improperly obtained by opposing counsel. See Richards v. Jain, 168 F.Supp.2nd 1195 (W.D. Wash. 2001).
2 In re Meador, 968 S.W.2d 346 (Tex. 1998).