Attorney Kim is representing a client in a contentious divorce case. During discovery, Kim's paralegal, acting under Kim's general instruction to gather all relevant documents, inadvertently obtains privileged communications between the opposing party and their counsel. Upon realizing the documents are privileged, Kim immediately notifies opposing counsel, sequesters the documents, and refrains from reviewing them. Has Kim violated the Model Rules of Professional Conduct?
- AYes, because the privileged documents were obtained through Kim's office, regardless of intent or remedial action.
- BNo, because the paralegal acted inadvertently, and Kim did not personally solicit the privileged documents.
- CYes, because a lawyer is ultimately responsible for the actions of their nonlawyer assistant.
- DNo, because Kim took appropriate remedial action upon discovering the inadvertent acquisition.
Show answer & explanationAnswer & explanation
Correct answer: D. No, because Kim took appropriate remedial action upon discovering the inadvertent acquisition.
Model Rule 4.4(b) states that a lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. The Rule does not require the lawyer to return the document or refrain from using it, but some jurisdictions interpret it to require such actions. However, the comments to Rule 4.4(b) suggest that taking prompt remedial action, such as notifying the sender, sequestering the documents, and refraining from use, is generally considered appropriate. While Kim is responsible for her paralegal's actions, the rule primarily focuses on the lawyer's conduct *upon receipt* of such inadvertently sent information.
Why the other options are wrong
- A. The mere obtaining of privileged documents, especially inadvertently, is not itself a violation if the lawyer takes appropriate remedial steps as outlined in Rule 4.4(b) and its comments.
- B. Inadvertence of the paralegal or lack of solicitation doesn't negate the ethical duty upon receipt, but Kim's subsequent actions are key to compliance.
- C. While a lawyer is generally responsible for their nonlawyer's actions, Rule 4.4(b) specifically addresses the lawyer's duties upon *receiving* inadvertently sent privileged information. Kim fulfilled those duties.
Respecting Rights of Third Persons (Inadvertent Receipt)
A lawyer who receives inadvertently sent privileged information must promptly notify the sender. Further actions (e.g., returning, sequestering, refraining from use) may be required by law or judicial decision in the specific jurisdiction.
- Mandatory: promptly notify sender.
- Applies to inadvertently sent documents/ESI.
- Jurisdictional variations on further actions.
Memory trick: If 'Privilege' 'Slips' your 'Way', 'Notify' the 'Sender' right away!