Opinion No. 99-4
Summary: Lawyer received a letter addressed to the other side's client that was mailed to Lawyer by mistake. An associate, believing that the firm simply had been copied, filed the letter. In reviewing the file in preparation for a hearing, Lawyer first read the letter, saw that it contained important evidence of which he was formerly unaware, and informed opposing counsel of what had occurred. If Lawyer concludes that it is in his client's best interest to do so, he should resist the opposing counsel's demand for return of the letter and should urge the tribunal to reject the claim of attorney-client privilege.
Facts: The attorney for defendant in a civil matter in which Lawyer (the inquirer) represents plaintiff mailed to Lawyer's office a letter that was addressed to the president of defendant's client. Lawyer's associate, believing that their office had simply been copied, read and filed the letter. While preparing for a hearing, Lawyer read the letter for the first time and saw that it contained a significant piece of evidence of which he had been unaware that related to an important issue in the case. Lawyer told defendant's counsel that he had her letter. She claimed that it is covered by the attorney-client privilege and requested its return. Lawyer inquires about his responsibility.
Discussion: There is a variety of contradictory authority, in Massachusetts and elsewhere, with respect to this general issue, although some of the authority may well be limited to the facts presented. See In re Reorganization of Electric Mutual Liability Insurance (Bermuda), 425 Mass. 419 (1997); International Digital Systems Corp. v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass. 1988): MBA Opinion 94-6; and ABA Opinion 92-368. Some support the position taken by defendant's counsel in this case; some support the opposite conclusion. For example, in our Opinion 94-6, we advised that it was not a violation of the disciplinary rules for a government lawyer to possess and use corporate documents covered by attorney-client privilege that were copied and sent to a government agency without participation by any government employee. Thereafter the Supreme Judicial Court in the Electric Mutual Liability Insurance case stated that the "disclosure of a document by an anonymous source may not, by itself, mandate a conclusion that any privilege has been waived." 425 Mass. at 423. The court also noted the definition in proposed Massachusetts Rule of Evidence 510. " A person upon whom these rules confer a privilege against disclosure waives the privilege, if he . . . voluntarily discloses or consents to disclose of any significant part of the privileged matter."
There is, however, no definitive authority in this state with respect to the situation where counsel herself has mailed a letter containing confidential information to the opposing side. Given the conflict among the authorities and assuming that resisting the request of opposing counsel will materially benefit Lawyer's client, the Committee is of the view that Lawyer's ethical obligation to "represent [his] client zealously within the bounds of the law," Mass. R. Prof. C. 1.3, requires him to reject the opposing counsel's request. Opposing counsel has the option to seek a court order if he believes that the legal issue should resolved in his client's favor, and if he does so, Lawyer should then argue before that tribunal that the contents of the letter are not protected.
We should make clear that this inquiry does not present the issue whether Lawyer had any obligation to disclose to opposing counsel that he had received and read the letter she had sent to her client. We express no opinion on that issue because we were asked our view after the lawyer had decided to disclose his possession of the document and at a time when the parties might, if they so desired, obtain a definitive judicial response on the ability of Lawyer to use the misdirected document.
This Opinion is that of a committee without official governmental status
Permission to publish granted by the Board of Delegates on April 16, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.