The American Bar Association recently published Formal Opinion 11-460 to provide guidance to attorneys regarding their ethical duty upon discovering emails between a third party and the third party’s attorney. The Opinion interprets Model Rule 4.4(b) literally, concluding that neither that rule nor any other requires an attorney to notify opposing counsel of receipt of potentially privileged communications. The Opinion is of particular note because it directly contradicts the New Jersey Supreme Court’s opinion in Stengart v. Loving Care Agency, Inc. 201 N.J. 300 (2010).
Formal Opinion 11-460 addresses the increasingly familiar situation in employment litigation where counsel’s review of an employee’s workplace computer reveals potentially privileged emails between the employee and his/her attorney. The specific question posed by the Opinion is whether the employer’s counsel has any legal or ethical duty to inform opposing counsel. In answering the question in the negative, the ABA concluded that Model Rule 4.4(b) only addresses emails that were “inadvertently sent,” and since the emails in question were not “inadvertently sent” by either party, Model Rule 4.4(b) is inapplicable. The ABA acknowledges that its Opinion is in direct contrast to the New Jersey Supreme Court’s decision in Stengart. Specifically, in Stengart, the New Jersey Supreme Court held that defense counsel violated New Jersey RPC 4.4(b), which is substantially similar to Model Rule 4.4(b), by not setting aside and notifying opposing counsel of their possession of emails between Stengart and her counsel, which were obtained through a forensic image of Stengart’s work laptop.
Significantly, while Formal Opinion 11-460 holds that Model Rule 4.4(b) does not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged communications, it makes clear that Courts may impose disclosure obligations pursuant to their supervisory authority. The Opinion also explains that the rules of civil procedure, discovery, statutory or case law in a particular jurisdiction may require notification and return of the emails. Further, the Opinion explains that the best practice will often be for counsel to give notice to their adversary and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to rely on them, and if possible, before attorney review. Finally, the Opinion cautions that attorneys need to explain the various implications and available alternatives, if any, of disclosure of the potentially privileged emails to their client.
As a practical matter, the ABA’s Opinion may do little to change how an attorney reacts when coming into possession of a privileged communication since many jurisdictions, including New Jersey, require the disclosure of potentially privileged communications uncovered during the review of electronic discovery. Nevertheless, the ABA’s Opinion adds the voice of a well-respected national organization to this debate and may persuade courts or lawmakers to reconsider their view in the future.