Multistate Professional Responsibility Examination (MPRE)Client ConfidentialityHard
A lawyer represents a client in a complex corporate acquisition. During negotiations, the opposing counsel inadvertently sends an email to the lawyer that contains highly sensitive, privileged information about their own client's absolute bottom-line price, clearly marked 'ATTORNEY-CLIENT PRIVILEGED - DO NOT DISTRIBUTE.' The lawyer immediately recognizes the error. What is the lawyer's primary ethical obligation upon receiving this email?
- AThe lawyer must immediately inform their own client of the privileged information received.
- BThe lawyer has no ethical obligation and may use the information to their client's advantage.
- CThe lawyer must notify the sender and delete the email without reviewing or using its contents.
- DThe lawyer may review the email to determine its relevance to the case before deciding on a course of action.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer must notify the sender and delete the email without reviewing or using its contents.
Under Model Rule 4.4(b), 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. The ABA's position, supported by many jurisdictions, is that reviewing or using such inadvertently sent privileged information is generally impermissible.
Why the other options are wrong
- A. Informing one's own client about inadvertently received privileged information before notifying the sender and seeking guidance (if necessary) is contrary to the spirit of Rule 4.4(b) and could also lead to ethical issues.
- B. Using inadvertently sent privileged information is ethically prohibited and could lead to severe consequences, including disqualification.
- D. Reviewing the email would likely constitute a violation of the spirit of Rule 4.4(b) and could lead to disqualification or other sanctions.
Inadvertently Sent Privileged Documents
When a lawyer receives a document that was inadvertently sent and knows or reasonably should know it contains privileged information, the lawyer must promptly notify the sender.
- Rule 4.4(b) governs this situation.
- Prompt notification to the sender is key.
- Jurisdictions vary on whether review is prohibited, but generally, it is discouraged or prohibited.
Memory trick: Mistake mail? Notify, don't read.