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Lawyers Inadvertently Send Docs: NYC Bar Assoc. Opines

May 1, 2012
[ By Melanie Gretchen ] The digital frontier broke new ground this year when the New York City Bar Association took the position that lawyers who receive documents that were sent by mistake must immediately notify the sender, but they are not necessarily prohibited from using them.  In an ethics opinion issued earlier this week, the association revised a previous opinion that largely prohibited lawyers from reviewing or using the misdirected document in question. New Age. The current opinion, Opinion 2012-1, relies on Rule 4.4(b) of the New York Rules of Professional Conduct, which requires lawyers who reasonably know that a document was given to them inadvertently to inform the sender; this includes voicemail and e-mails, regardless of whether the sender is a lawyer, a client or a third party. Since the previous opinion, issued in 2003-04 before the Rules of Professional Conduct were adopted, was more restrictive than Rule 4.4(b), it was formally withdrawn as part of the new opinion, leaving lawyers free to use the information. Warning. Going forward, the bar association stressed that lawyers may still determine that it is "right" to refrain from using documents that were inadvertently sent and noted that reading documents that contain privileged information could run afoul of other ethical rules. "Counsel would do well, however, to remember the New York State Bar Association comment that 'a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion'". For further details, go to [Reuters, 4/30/12].