Mitchell James Kendrick
ABSTRACT
“[R]ight is right, and wrong is wrong, and a body ain’t got no
business doing wrong when he ain’t ignorant and knows better.”1
Model Rule of Professional Conduct 4.4(b) was adopted because
lawyers sometimes receive confidential or privileged information that was
mistakenly sent or produced by opposing parties or their lawyers. Under
Rule 4.4(b), if a lawyer knows or reasonably should know that such
information was sent inadvertently, then the lawyer is required to notify
the sender. However, the ABA has made clear that Rule 4.4(b) does not
apply when a lawyer is the intentional recipient of such information.
As a result, courts have created confusion for lawyers by imposing different obligations upon lawyers that are the intentional recipients of such information. Some courts have relied on outdated ethics opinions to propose a proper course of conduct, while others have created new standards. Some courts have even advocated that the scope of Rule 4.4(b) should be interpreted broadly to apply in these circumstances. Consequently, lawyers and their clients risk being penalized or placed at a disadvantage during litigation if their chosen course of conduct is viewed as improper in the eyes of a court.
This Comment will argue that a clear standard is needed to govern the duties and obligations of a lawyer upon the intentional receipt of unsolicited privileged or confidential information. A clear standard will help both lawyers and courts distinguish between proper and improper ethical conduct. Moreover, a clear standard is also needed to assist lawyers in managing the tension between their duty of zealous advocacy and staying within the boundaries of proper legal ethics. This Comment will ultimately argue that the ABA is in the best position to set forth a clear standard outlining a lawyer’s duties and obligations upon the intentional receipt of unsolicited privileged or confidential documents.