October 16, 2017

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

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