Multistate Professional Responsibility Examination (MPRE)Transactions and Communications with Persons Other Than ClientsMedium
Attorney Chen is representing a plaintiff in a complex commercial litigation case against a large corporation. During discovery, Chen's paralegal inadvertently receives an email clearly marked 'PRIVILEGED AND CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION' from the opposing counsel. The email contains sensitive legal strategy discussions between the corporation's in-house counsel and its CEO. What is Chen's ethical obligation upon discovering the nature of this email?
- AChen may use the information in the email if it is highly relevant and beneficial to the client's case.
- BChen must notify the court immediately and request guidance on how to proceed with the inadvertently received document.
- CChen may review the email to determine its relevance to the case before deciding on a course of action.
- DChen must immediately notify opposing counsel and return, sequester, or destroy the email.
Show answer & explanationAnswer & explanation
Correct answer: D. Chen must immediately notify opposing counsel and return, sequester, or destroy the email.
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.
Why the other options are wrong
- A. Using inadvertently received privileged information is a serious ethical violation and could lead to severe professional discipline.
- B. While judicial guidance might be sought in complex situations, the immediate and primary ethical obligation is to notify the sender, not necessarily the court first.
- C. Reviewing the email beyond what is necessary to determine its privileged nature is generally considered unethical and could lead to disqualification or other sanctions.
Inadvertent Receipt of Privileged Information
A lawyer who receives a document or electronically stored information and knows or reasonably should know it was inadvertently sent must promptly notify the sender.
- Applies to documents and ESI.
- Triggered by knowing or reasonably knowing it was inadvertently sent.
- Obligation is to promptly notify the sender.
Memory trick: Mystery mail, privileged, notify the sender without fail.