New York lawyers can, in certain situations, use documents related to a client’s representation that were sent to them inadvertently to help the client, the New York City bar recently said in an advisory opinion.
A state ethics rule requires a lawyer who receives a document related to the representation of a client and who knows that it was inadvertently sent, to promptly notify the sender.
But Rule 4.4(b) doesn’t elaborate on to what extent the lawyer can or should use this information to help the client, the New York City Bar’s professional ethics committee said.
In the digital era, one click of a button is all it takes for someone to send documents to the wrong recipient.
There may be additional vehicles like substantive law, court orders, or agreements between the parties that impose additional obligations on the lawyer as to what to do with the information, the committee warned.
But because the rule is silent on what to do after notifying the sender, there “remains the question whether an attorney may choose to refrain from using beneficial information when refraining would disadvantage the client and there is no agreement, order, law, rule or controlling authority on point,” it said.
A lawyer may not want to use this information because of a “higher professional duty” to refrain from exploiting the inadvertent disclosure; because of professional courtesy; or for strategic reasons, like avoiding antagonism or a court’s negative reaction, the committee observed.
But before making any decisions, the committee said, the lawyer has to make sure he or she falls within the parameters of ethical duties to:
- not intentionally “fail to seek the objectives of the client through reasonably available means permitted by law and these Rules”;
- abide by a client’s decisions concerning the objectives of representation; and
- consult with the client as to the means by which they are to be pursued.
An example of inadvertently sent information that might require such consultation with a defendant-client would be a document or theory that, before disclosure, was unknown to the client, and that would, if used in litigation, defeat the client’s liability.
But if the client ultimately directs the lawyer to use the inadvertently sent information, the lawyer has to determine whether and to what extent to abide by that directive because a lawyer doesn’t have to engage in risky conduct for a client’s benefit, it said.
A lawyer can withdraw from representation if the client demands the lawyer use the information but doing so would expose the lawyer to a risk of discipline, the committee said.
But absent such a legal risk, the client’s wishes should prevail if the failure to use it would prejudice the rights of the client, it said.
However, the lawyer may not, for example, refrain from seeking to use beneficial information solely as a professional courtesy, or solely in hopes that the lawyer may personally benefit from a favor to the other party’s lawyer, the committee said.
And a lawyer may not have to let the client know about the information if the lawyer determines it can’t reasonably be expected “to have some significance to achieving the objectives of the representation,” the committee said.
The opinion is Ass’n of the Bar of the City of New York Comm. on Prof’l Ethics, Formal Op. 2019-3, 5/16/19.