Part of the opinion is common sense – you . . . must promptly notify the sender, under Rule 4.4(b) of the New York Rules of Professional Conduct. The duty holds regardless of whether the communication is electronic or hard-copy, and applies no matter who sends the material.And my students complain that sometimes they don't get a straight answer in class! Ha! Welcome to the real world.
The tricky part? Now lawyers are tempted with the discretion to decide for themselves how to answer the next question: ”Now that I have it, and I told the other side about it, is it it is ethically permissible to use this material?” Here the Opinion eases away from prior bans against such use.
Now, “depending on the facts and circumstances” use of the material may be appropriate, or at least allowed. Of course, you are free to engage your noblest qualities and decide that such use would be unfair, and decline to look. . . . Need you raise the issue with your client, who might be angry with you for passing up the opportunity to learn some secrets? You’re on your own there, but the comments to the Opinion suggest you may want to do that too.
So, green light right? Not so fast. The Opinion cautions that . . . “a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion”.
Wednesday, May 2, 2012
NY City Bar Ass'n new opinion on what to do when you receive documents by mistake
The Legal Quandary is reporting today that the New York City Bar Association has issued an opinion (available here) attempting to clarify what lawyers must and must not do when they receive material sent in error by an opponent. I have not had a chance to read the opinion itself so I am just going to repeat what the LQ reported: