Attorney Miller represents a defendant in a criminal case. During discovery, the prosecutor inadvertently emails Miller a highly confidential document containing privileged grand jury testimony that is clearly marked 'PRIVILEGED - DO NOT DISTRIBUTE.' Miller immediately recognizes the nature of the document. What is Miller's ethical obligation upon receiving this document?
- AMiller must review the document to determine its relevance before deciding on a course of action.
- BMiller must promptly notify the sender and abide by the sender's reasonable instructions regarding the disposition of the document.
- CMiller may use the document if it is favorable to his client, as the prosecutor waived privilege by sending it.
- DMiller may review the document, as it was sent to him by the opposing party.
Show answer & explanationAnswer & explanation
Correct answer: B. Miller must promptly notify the sender and abide by the sender's reasonable instructions regarding the disposition of the document.
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. While the Rule does not explicitly require abiding by instructions, comment [2] suggests that a lawyer 'should not use the document' and 'should return the document or delete electronically stored information'.
Why the other options are wrong
- A. Reviewing the document to assess relevance is the very act that Rule 4.4(b) seeks to prevent or mitigate.
- C. Inadvertent disclosure does not automatically waive privilege, especially if prompt remedial action is taken by the sender.
- D. Reviewing and using an inadvertently sent privileged document is generally prohibited.
Inadvertent Receipt of Privileged Information
A lawyer who receives a document or ESI that was inadvertently sent and knows or reasonably should know it is privileged has an ethical obligation to promptly notify the sender.
- Applies to both physical documents and ESI.
- Knowledge or reasonable knowledge of inadvertent sending is key.
- Notification to sender is mandatory; use is generally prohibited.
Memory trick: Oops, wrong mail! Tell them it's not yours and don't peek.