Duties concerning inadvertently transmitted writings (Rule 4.4)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

There is no current California rule that corresponds to the American Bar Association's Model Rule 4.4 addressing lawyers' duties to third persons and when presented with inadvertent disclosure of privileged materials. Proposed Rule 4.4 is a modified version of the ABA rule. It provides that where it is reasonably apparent to a lawyer who has received a writing that was inadvertently sent or produced and relates to the lawyer's representation of a client, and the lawyer knows or reasonably should know that the writing is privileged or subject to work product doctrine, the lawyer shall refrain from examining the writing any more than it necessary to determine that it is privileged or protected work doctrine and shall promptly notify the sender.

The proposed rule does not materially alter existing law in California, but will add, if adopted, a new disciplinary rule to specifically address ethical duties that previously were defined only in case law. The ethical duties contemplated by the proposed rule are derived in part from Model Rule 4.4, but more significantly are influenced by California case law, notably the leading case in this area, Rico v. Mitsubishi Motors, 42 Cal. 4th 807 (2007).

A lawyer's ethical duties with respect to inadvertently transmitted writings have their genesis in California in State Compensation Fund v. WPS, 70 Cal. App. 4th 644 (1999), which reversed a sanctions award against an attorney who reviewed and made use of obviously privileged materials that had been inadvertently produced in discovery. Sanctions were reversed because the offensive conduct had not been condemned by any decision, statute or ethical rule applicable in California at that time. Relying for guidance, however, upon then ABA Formal Ethics Opinion 92-368, the court of appeal established a duty that a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise appear to be confidential and privileged, and where it is reasonably apparent that the materials were provided or made available through inadvertence of the sender, should refrain from examining them any more than is necessary to ascertain their privileged nature, and is obligated to immediately notify the sender of his or her possession of the material.

In the years since, the ABA withdrew Formal Ethics Opinion 92-368, restating its concepts in Formal Ethics Opinions 05-437 and 06-440, and adopting ABA Model Rule 4.4 in 2002. Yet, California still had no formal ethical rule to address the receipt of inadvertently transmitted privileged materials. Instead, the duty originally articulated in State Compensation Fund was refined in case law, such as Rico in 2007 which extended it to cover work product.

Comment 1 to the rule provides the lawyer with options derived from State Compensation Fund and Rico, being to return the writing to the sender, seek to reach agreement with the sender regarding disposition of the writing, or seek guidance from the tribunal. In giving the notice required by the rule, Comment 1 cautions the lawyer to comply with Rule 4.2, which is the rule generally proscribing direct contact with a represented party. While another California decision, Clark v. Superior Court, 196 Cal. App. 4th 37 (2011), addressed a lawyer's misuse of privileged materials the client wrongfully obtained from the adverse party and provided to the lawyer, Comment 2 to the proposed rule makes it clear that the situation described in Clark is not included within the scope of the rule. Instead, as drafted, the rule speaks only to an inadvertent disclosure by the sender.

The Rules Revision Commission declined to adopt subsection (a) of Model Rule 4.4, regarding the rights of third persons, which regulates in other jurisdictions conduct that would have no substantial purpose other than to embarrass, delay or burden a third person. This was rejected as it was considered too vague and overbroad, and could be used inappropriately as a club in discovery disputes. Thus, although the Model Rules recognize a duty to protect the rights of third persons, California's Proposed Rule 4.4, if approved by the Supreme Court, will addresses only a lawyer's duties concerning inadvertently transmitted writings. In addition, the language of Proposed Rule 4.4 deviates from ABA model rule to be more in line with the requirements set forth in the Rico decision.

Rule 4.4 Duties Concerning Inadvertently Transmitted Writings*

(Proposed rule adopted by the board March 9, 2017)

Where it is reasonably* apparent to a lawyer who receives a writing* relating to a lawyer's representation of a client that the writing* was inadvertently sent or produced, and the lawyer knows* or reasonably should know* that the writing* is privileged or subject to the work product doctrine, the lawyer shall:

(a) refrain from examining the writing* any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

(b) promptly notify the sender.

Comment

[1] If a lawyer determines this rule applies to a transmitted writing,* the lawyer should return the writing* to the sender, seek to reach agreement with the sender regarding the disposition of the writing,* or seek guidance from a tribunal.* See Rico v. Mitsubishi (2007) 42 Cal.4th 807, 817 [68 Cal.Rptr.3d 758]. In providing notice required by this rule, the lawyer shall comply with rule 4.2.

[2] This rule does not address the legal duties of a lawyer who receives a writing* that the lawyer knows* or reasonably should know* may have been inappropriately disclosed by the sending person. See Clark v. Superior Court (2011) 196 Cal.App.4th 37 [125 Cal.Rptr.3d 361].