An employee hires an attorney and files a lawsuit against her employer. The employee communicates with her attorney using her workplace computer and smartphone. The employee is aware of the company’s written policy that reserves its right of access to email correspondence via the company’s email account and computers, and so she puts the legend “Attorney-Client Confidential Communication” on all of her communications with her attorney.
The company hires outside counsel to defend the lawsuit. It also engages a computer forensic expert to retrieve and copy the contents of the employee’s workplace computer and smartphone. The company then provides the contents to its counsel, who searches for information to help defend the company and discovers the employee’s potentially privileged emails with her attorney.
In this hypothetical, does outside counsel have an obligation, under the Model Rules of Professional Conduct, to notify opposing counsel of the discovery of these potentially privileged communications? And if outside counsel has no legal obligation to notify, what are the ethical considerations for corporate counsel in deciding whether to notify opposing counsel?
The ABA’s Standing Committee on Ethics and Professional Responsibility has advised that in the hypothetical described above, the Model Rules do not impose an obligation to notify opposing counsel of the potentially privileged email communications. See ABA Formal Op. 11-460 (Aug. 4, 2011). The relevant Model Rule is 4.4(b), which provides that “[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.” The ABA reasoned, however, that Rule 4.4(b) does not apply in this context because 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.
The opinion notes that although the Model Rules do not require disclosure of the potentially privileged email communications, courts may nevertheless impose a disclosure obligation, and the failure to meet that obligation could result in disciplinary action or a litigation sanction.
In one case highlighted by the ABA, the Supreme Court of New Jersey found that an employer’s lawyer violated New Jersey’s version of Rule 4.4(b) by failing to notify the employee’s counsel that the employer had downloaded and intended to use copies of pre-suit email messages exchanged between the employee and her lawyers. See Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 665 (N.J. 2010). The Stengart court found that the employee “had an objectively reasonable expectation of privacy” in the emails based on the fact that the employee “could reasonably expect that e-mail communications with her lawyer through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.” Id. at 655.
But the ABA acknowledged that other courts have not adopted this rationale. See, e.g., Scott v. Beth Israel Medical Center, Inc., 847 N.Y.S.2d 436, 444 (Sup. Ct. 2007). Where the law governing potential disclosure is unclear, the lawyer must keep the information confidential under Rule 1.6(a) unless there is an applicable exception to the confidentiality obligation or the client gives informed consent to disclosure.
Where no law can reasonably be read to establish a reporting obligation, however, the employer must decide whether to give notice to opposing counsel. The ABA advises that in this case, even when there is no clear notification obligation, it is often in the employer’s best interest to notify opposing counsel and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to use the emails. If possible, the employer should obtain such a ruling even before its outside counsel reviews the emails. This approach minimizes the risk that outside counsel will be disqualified or subject to some other sanction in the event that the court ultimately rules that the emails are privileged and inadmissible.