ANALYSIS: Rule 4.4

NEW RULES OF PROFESSIONAL CONDUCT

In our digital age we have become accustomed to information at the touch of a button. We are cautioned not to open certain emails for security reasons, and, by and large, we are more careful than ever before. We get that the phishing hook does great damage.

Inevitably, we receive messages that were not intended for us. Auto-population of email addresses, spelling errors, inadvertent transmission from portable devices, or perhaps an error in haste, has sent emails inadvertently into our inbox. Often we simply delete and perhaps tell the sender it was not meant for us, for which we may receive a grateful apology. As attorneys, we are held to higher standards than others and one that comes into focus involves receipt of privileged information from others.

Recognizing the frequency and risk involved, not only to the sender, but to the recipient, the new California Rules of Professional Conduct take a decisive step that reminds us to be careful about what we send -- and even more careful about what we read. In a section titled "Transactions with Persons Other Than Clients," the rules focus on guideposts on how to deal with statements to others, represented litigants, and self-represented litigants.

Effective Nov. 1, California Rule of Professional Conduct 4.4, Duties Concerning Inadvertently Transmitted Writings, will require all attorneys on the receiving end to quickly decipher and deal with the unexpected receipt of privileged communication:

"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."

The comments that follow state: "If a lawyer determines this rule applies to a transmitted writing, the lawyer should return the writing to the sender, reach an agreement with the sender regarding the disposition of the writing, or seek guidance from a tribunal."

Receiving privileged information in any form, from digital to paper, imposes a duty to act rather than ignore -- to disclose, not disguise. While it is not new that a lawyer who inadvertently receives privileged information is not at liberty to add it to his or her repertoire, Rule 4.4 and its following comments provide express, unmistakable requirements for the recipient. The integrity of our profession requires protection of privileged information not only when it is easy, but also w

This rule follows law that focuses on the adverse consequence of disqualification. For example, in Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007), the California Supreme Court confirmed disqualification for receipt of notes inadvertently left at a deposition that were later used by the recipient counsel during discovery. In short, this new rule seeks to nip the issue at the outset by establishing an affirmative duty on the recipient to act and further the protection of privilege. By addressing this by a new rule, the California Supreme Court unmistakably removes any ambiguity over a mistake by imposing an affirmative duty on the recipient, which can only be ignored at their peril.

Firms large and small alike need to carefully consider the new Rule 4.4, recognize the affirmative duty it creates on the recipient, and fashion effective policies to secure privilege and avoid potential disqualification. Some suggested approaches are:

1. Immediate closure and isolation of the privileged material;

2. A time line created on receipt, opening, and closing;

3. Documentation on notification and a chain of custody on disposition;

4. Confirmation in writing of notification, disposition, and removal; and,

5. Maintaining a record of how the issue was addressed in the event of future inquiry by the sender or other affected party.

As lawyers, this, like any other corner must be turned squarely.