Multistate Professional Responsibility Examination (MPRE)The Client-Lawyer RelationshipEasy
A lawyer represents a client in a civil lawsuit. During discovery, the lawyer receives a document from the opposing counsel that appears to be privileged, inadvertently sent. The lawyer quickly reviews the document and realizes its privileged nature.
- AThe lawyer must promptly notify the sender and return, sequester, or destroy the specified information, and not use or disclose it.
- BThe lawyer is ethically permitted to use the document if it was not clearly marked as privileged by the sender.
- CThe lawyer may review the document further if it is highly relevant to the case and could significantly benefit the client.
- DThe lawyer should immediately file a motion with the court to determine the document's admissibility.
Show answer & explanationAnswer & explanation
Correct answer: A. The lawyer must promptly notify the sender and return, sequester, or destroy the specified information, and not use or disclose it.
Model Rule 4.4(b) specifically addresses the duties of a lawyer who receives inadvertently disclosed privileged information. The lawyer must notify the sender and take reasonable steps to return or sequester the information, and refrain from using it.
Why the other options are wrong
- B. The absence of a 'privileged' marking does not negate the ethical duty if the lawyer knows or reasonably should know the document is privileged.
- C. Reviewing and using inadvertently disclosed privileged documents is generally prohibited, regardless of its relevance or potential benefit.
- D. While a court motion might eventually be necessary if there's a dispute, the immediate ethical duty is to notify the sender.
Inadvertent Disclosure of Privileged Information
When a lawyer receives a document that appears to be privileged and was inadvertently sent, the lawyer has specific ethical duties to the sender.
- Applies when the lawyer knows or reasonably should know the information is privileged.
- The lawyer must promptly notify the sender.
- The lawyer must return, sequester, or destroy the information and not use or disclose it.
Memory trick: Privilege Accident: Notify, Return, Don't Learn.