Stop Reading Inadvertently Disclosed Privileged Writing and Notify Counsel

Resist the temptation of examining apparently privileged writing sent inadvertently by opposing counsel. Stop reading and return it to sender.

When an attorney receives a writing that appears to be confidential and privileged, the attorney has an ethical duty not to examine the writing any more than is essential to determine if it is privileged. Then, the attorney shall immediately notify the sender that he or she received material that appears to be privileged, and resolve the issue either by agreement or by seeking the court’s intervention. See Rico v. Mitsubishi Motors Corporation, 42 Cal.4th 807 (2007). The Supreme Court in Rico noted that “[a]n attorney’s obligation is not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” Rico, 42 Cal.4th at 818. 

The Rico court adopted the standard applied in State Compensation Insurance Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999), the seminal California decision defining an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected by the attorney-client privilege. Additionally, the Rico court extended the rule to writings protected by the attorney work product doctrine.

In a more recent opinion, the McDermott court clarified that the attorney’s ethical obligation to return the inadvertently disclosed writing does not only arise when the writing is inadvertently disclosed during discovery in litigation, but such ethical obligation arises regardless of how the lawyer obtained the inadvertently disclosed writing. McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (2017). The McDermott court also explained that the inadvertent disclosure of a writing protected by the attorney-client privilege does not waive the attorney-client privilege because such disclosure lacks the necessary intent to waive the privilege.  

Likewise, in Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016), the California Supreme Court held that the governmental entity’s inadvertent release of privileged writings in response to a Public Records Act request does not constitute a waiver of the attorney-client or work-product privilege.  The court explained that Government Code section 6254.5 which generally provides that disclosure of a public record waives any privilege applies to intentional and not inadvertent disclosure. The court noted that the legislative history of section 6254.5 explains it is intended to prevent selective disclosure, which is an intentional act and not an inadvertent disclosure.

The California Supreme Court has recently approved a new Rule of Professional Conduct on this issue.  This underscores an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected by the attorney-client privilege. California Rule of Professional Conduct, Rule 4.4, which will be effective on November 1, 2018, states:

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.

Rule 4.4 essentially codifies the case law precedents set out above. Further, the new Rule of Professional Conduct was approved by the California Supreme Court; as such a clear message is being articulated as to the proper handling of inadvertently disclosed privileged materials, whether obtained in the course of discovery or through any other means.  It is therefore incumbent upon attorneys to properly, and ethically, react to inadvertently disclosed privileged writings. Resist the temptation they pose and return the privileged writings to sender.

Rayna A. Stephan is the San Diego Chief Deputy City Attorney.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**