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The Accidental E-Mail: Read It?

What fortune befalls! Opposing counsel inadvertently copies you on a confidential e-mail. Read or not read? That is the question.

Unfortunately, with the ABA having withdrawn a controversial 1992 ethics opinion addressing the question, the answer is anyone's guess, says Michael Yablonski in an article, New Rule, New Ballgame? He writes:

"With little fanfare, the ABA has withdrawn a controversial 1992 ethics opinion requiring a lawyer who inadvertently receives privileged material from an opponent to refrain from reading the material, notify the sender of the error, and abide by the sender’s instructions. In the process, an unsettled area of the law that has troubled litigators for the past 14 years may have become even more unsettled and troublesome."

The committee, he explains, withdrew the opinion because it failed to correspond with any provision of the Model Rules of Professional Responsibility. A change to the model rules subsequent to the opinion requires the recipient of a misdirected document to notify the sender, but does not explicity prohibit review of the document.

"[T]hese unfortunate occurrences can create a high-stakes guessing game for both sides. A lawyer who 'messes up' by sending privileged material to an opponent faces an obvious client relationship problem. But the stakes are no less severe for the lawyer who unwittingly receives and reads such material."

Posted by Robert J. Ambrogi on July 13, 2006 at 01:27 PM | Permalink | Comments (0)

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