November 16, 1993
A lawyer who requests production of unprivileged documents in the possession of the opposing party, is provided copies of documents, and then obtains a memo referenced in those documents from public sources, is not ethically required to return the documents or the memo to the opposing party upon demand under a claim that they are privileged.
The opposing party is free to pursue any course of action available to it in law to seek the return of the documents.
References: ABA Op 92-368.
Counsel for a corporation was advised by a state environmental protection agency [EPA] that the corporation may be named a potential responsible party for environmental problems arising in connection with the corporation's sale of land. Corporate counsel met with representatives for the state EPA and the purchasing state agency to review and obtain "all nonprivileged records of [the state agency] concerning the site." In the documents counsel received were two memos, one to the state governor [hereinafter "governor's memo"] and one to a state agency [hereinafter "agency memo"]. The two memos referenced a third memo from the state attorney general regarding the property [hereinafter "AG memo"], but no copy of the third memo was found in subsequent record checks. In response to a request to disclose the AG memo, corporate counsel was told the state agency did not have a copy.
Corporate counsel was eventually able to locate copies of all three memos from the state historical society. The historical society archivist signed an affidavit attesting that the memos were public documents and stamped each document accordingly. Three months later the purchasing state agency requested the return of the governor's memo on the grounds that its production was "inadvertent" and lawyer-client privileged communication.
Corporate counsel asks whether ethics rules require him to comply with the request.
In this inquiry, corporate counsel requested and received permission to review "nonprivileged" records of the state agencies. Counsel received copies of the governor's memo and the agency memo during two separate document searches through those "nonprivileged" records. Counsel tagged the materials desired for copying, and the copying and mailing was performed by state agency personnel. When the AG memo was not revealed in either record search, corporate counsel wrote to the state agency, enclosing the governor's memo and the agency memo, requesting the AG memo; the state agency denied it had a copy of the AG memo.
Three and a half months later the state agency requested that the corporate counsel return all copies of the governor's memo, claiming it was a privileged communication inadvertently given. Further, all memos at issue were available to the public from the state historical society.
Much has been written about inadvertent disclosure of confidential materials. ABA Op 92-368 states:
"A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them."
The situation before the ABA Committee is not the situation presented above. In this inquiry corporate counsel marked two of the memos for copying on two separate occasions, and they were copied and provided by the state agencies. The inquirer could not conclude the documents "were not intended" for the receiving lawyer. Nor, under the facts presented, was it apparent on the face of the documents that they were subject to privilege or otherwise confidential.
Whether or not the memos are privileged, no ethical duty arises under these facts to return the memos requested. The state agencies, of course, are free to pursue any course of action available to them in law to seek the return of the documents.