Consider the following hypothetical: After an employee files a lawsuit against her employer, the employer copies the contents of her workplace computer for possible use in defending the lawsuit, and provides copies to its outside counsel. Upon review, the employer’s counsel sees that some of the employee’s e-mails were to her counsel, and bear the legend “Attorney-Client Confidential Communication.”

Question: Must the employer’s counsel notify the employee’s lawyer that the employer has accessed this correspondence?

Note that under the hypothetical the disclosures were unintentional in that the employee intended the e-mails for her own counsel; they were not intended for review by her employer or for her employer’s outside counsel—she merely used her workplace computer as the conduit for preparing and sending them. They were not inadvertently disclosed. They arguably belong to her employer because they were on its computer system, and yet she arguably has a privacy interest in them. This takes the e-mails out of the traditional framework for consideration of documents that have been inadvertently disclosed through mistake. On August 4, 2011, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility addressed this hypothetical question in Formal Opinion 11-460: “Duty when Lawyer Receives Copies of a Third Party’s E-Mail Communications with Counsel.” The opinion addresses the distinction between unintentional and inadvertent disclosures, while applying the inadvertent disclosure rule as the framework for the analysis.

1. The Inadvertent Disclosure Rules: MRPC and KRPC

ABA 11-460 puts a new gloss on ABA Model Rule of Professional Conduct 4.4 (b), which provides: “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.”

MRPC 4.4 (b) was adopted in 2002. Up to that time, ABA Formal Opinion 92-368 had filled the gap, holding that a lawyer who received documents sent clearly by mistake had to notify the sender, but also refrain from examining them while awaiting the sender’s instructions about what to do with them. Two years later, ABA Formal Opinion 94-382 extended this holding to the lawyer who receives an adverse party’s confidential-looking materials from someone who is “unauthorized”. Both of these opinions were withdrawn after the adoption of the less-rigorous, and frequently criticized, MRPC 4.4(b).

Kentucky Rule of Professional Conduct (KRPC) 4.4 (b) became effective on July 15, 2009. In essence, it codified the withdrawn holdings of ABA 94-368 and 94-382, as well as a formal ethics opinion of the Kentucky Bar Association, KBA E-374, which cited ABA 92-368 with approval. In other words, the Kentucky Supreme Court declined to follow the mere notification provision of MRPC 4.4 (b), and instead adopted the more stringent position taken by the earlier ethics opinions of the ABA and the KBA. It is categorized as a traditional “Stop, Notify and Return” rule. Kentucky is not the only state declining to follow the ABA’s MRPC 4.4(b). Other “Stop, Notify and Return” jurisdictions include New Jersey, see, e.g, Stengart v. Loving Care Agency, Inc., 990 A. 2nd 650 (N.J. 2010), and Arizona, Ariz. Ethics Op. 07-03 (2007). KRPC 4.4 (b) states:

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:

1. refrain from reading the document, 
2. promptly notify the sender, and 
3. abide by the instructions of the sender regarding its disposition.

(Amended April 16, 2009, effective July 15, 2009).

The comment to KRPC 4.4 (b) states: “Paragraph (b) recognizes that lawyers sometimes receive documents or other communications that were mistakenly sent or produced by opposing parties or their lawyers. If it is clear from the circumstances that the document was not intended for the receiving lawyer, that lawyer must avoid reading the substance of the communication, notify the sender of the mistake, and comply with any reasonable request of the sender, allowing for protective measures (e.g. returning to sender, deleting or otherwise destroying the communication). The question whether the privileged status of such a document has been waived is a matter beyond the scope of these Rules. Similarly, this Rule does not address the legal duties of a lawyer who received a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, “document” includes e-mail or other electronic modes of transmission subject to being read or put into readable form.” (Emphasis added).

2. Formal Opinion 11-460

The ABA’s recent opinion turns on the fact that the disclosure was unintentional as opposed to inadvertent. The opinion’s synopsis states:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4 (b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6 (b) (6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.

The ABA reasoned that a document is not inadvertently sent when it is retrieved by a third person from a public or private place where it is stored or left. E-mails between an employee and his or her counsel are not “inadvertently sent” by either of them. The ABA declined to interpret MRPC 4.4 (b) as requiring notice to opposing counsel in this situation.

The ABA, however, then noted: “To say that Rule 4.4(b) and other rules are inapplicable is not to say that courts cannot or should not impose a disclosure obligation in this context pursuant to their supervisory or other authority.” The ABA noted that Comment [2] to MRPC 4.4 (b) observes: “…this Rule does not address the legal duties of a lawyer who received a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.” This same language is contained in the comment to KRPC 4.4 (b).

3. The Potential Effect of ABA 11-460 in Kentucky

No Kentucky court has ruled to date on the issue of the legal duties of an employer’s lawyer who receives copies of an employee’s private communications with counsel which were located in the employee’s business e-mail file or workplace computer. Given the fact that the Kentucky inadvertent disclosure rule (Notify, Stop and Return), is vastly more stringent than the notification requirement of the ABA Model Rule, it is conceivable that a Kentucky court would hold that the lawyer in litigation has the duty to notify opposing counsel when his or her client provides an opposing party’s attorney-client confidential communications that were retrieved from a computer or other device owned or possessed by the client.

This was the result in Stengert v. Loving Care Agency, Inc., 990 A.2d 650, 665 (N.J. 2010) in which the New Jersey Supreme Court found that an employer’s lawyer in a litigated employment case violated the state’s version of Rule 4.4 (b) (“Stop, Notify, Return”) by failing to notify the employee’s counsel that the employer had downloaded and intended to use copies of pre-suit e-mail messages exchanged between the employee and her lawyers. The New Jersey court held that the employee had a legitimate expectation of privacy which dictated the result. Conceivably, given the fact that the disclosure rules are exactly the same, a Kentucky court could hold similarly.

Alternatively, a Kentucky court could hold that the civil procedure rules governing discovery may require the employer to notify the employee that it has gained possession of the employee’s attorney-client communication. The basis for such a holding, if in federal court, could come from the federal discovery rules, see, e.g., Fed R. Civ. P. 26 (b) (5) (B) (setting out specific duties when the lawyer receives discovery materials subject to claim of privilege); Fed R. Evid. 502 (b) (inadvertent disclosure does not waive lawyer-client privilege or work-product protection if holder took reasonable steps to respond to it). Alternatively, it could come from KRPC 1.6 (b) (4), which allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent he or she reasonably believes it is necessary to do so to comply with the relevant law or a court order.

If there is doubt as to whether to notify the employee’s counsel, at a minimum in Kentucky, and in any other jurisdiction, the employer’s lawyer must explain the implications of disclosure to his or her client. See MRPC 1.4 (b): “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”, and 1.6 (a) (“lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [the exceptions under Rule 1.6 (b)]. The Kentucky Rules track both of these Model Rules provisions.

Note: Also on August 4, 2011, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 11-459 “Duty to Protect the Confidentiality of E-Mail Communications with One’s Client”. This opinion, which cross-references ABA 11-460, holds that a lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, where there is a significant risk that a third party may gain access.

“In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.”

ABA 11-459. Again, the Kentucky Bar Association has not opined on this specific situation, but it clearly is a worthwhile guidance for a Kentucky lawyer to follow.

As seen in the October issue of Louisville Bar Briefs.