Attorney Rodriguez represents a client, Mr. Evans, in a lawsuit against a major corporation. During discovery, the corporation's legal team inadvertently produces a document to Rodriguez that is clearly marked 'ATTORNEY-CLIENT PRIVILEGED' and contains highly sensitive legal advice from the corporation's in-house counsel regarding the very matter in dispute. Rodriguez immediately recognizes the privileged nature of the document. What is Attorney Rodriguez's ethical obligation upon receiving this document?
- ARodriguez must keep the document but refrain from using its contents in the litigation.
- BRodriguez may review the document and use the information, as it was provided by the opposing party.
- CRodriguez must promptly notify the opposing counsel and follow their instructions, or seek a determination from the court.
- DRodriguez must immediately return the document to the opposing counsel without reviewing its contents.
Show answer & explanationAnswer & explanation
Correct answer: C. Rodriguez must promptly notify the opposing counsel and follow their instructions, or seek a determination from the court.
Under Model Rule 4.4(b), an attorney 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 must promptly notify the sender. The Rule does not mandate return or destruction; rather, it requires notification. Further action, such as returning the document or seeking a court determination, often depends on the jurisdiction's specific rules or court orders.
Why the other options are wrong
- A. Simply refraining from use is insufficient; notification is required to allow the sender to rectify the mistake.
- B. Reviewing and using an inadvertently disclosed privileged document is generally unethical and can lead to sanctions.
- D. While returning the document is a common and often appropriate follow-up, the initial and mandatory ethical duty is to notify the sender.
Inadvertent Disclosure of Privileged Documents
When an attorney receives a document that they know or reasonably should know was inadvertently sent and is privileged, the attorney has an ethical duty to promptly notify the sender.
- Applies if the document is related to the representation.
- Knowledge or reasonable knowledge of inadvertent sending is key.
- The primary duty is notification, not necessarily return or destruction.
Memory trick: Accidental reveal, notification is the deal.