NEW YORK, April 30 (Reuters) - Lawyers who receive documents
that were sent by mistake must promptly notify the sender, but
they are not necessarily prohibited from using them, the New York City Bar Association said in an ethics opinion released
The opinion is an effort to address a problem that has grown
in the digital age, as electronic communication has become more
"We were really trying to clarify an area of ethics and law
where there has been a lot of confusion," said Jeremy Feinberg,
who chairs the association's professional ethics committee.
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 rule applies to all types of communication, including
voicemail and emails, regardless of whether the sender is a
lawyer, a client or a third party.
A previous opinion, issued in 2003-04 before the Rules of
Professional Conduct were adopted, had largely barred lawyers
from reviewing or using the misdirected document in question.
Since that opinion 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formally withdrawn as part of the new opinion, leaving lawyers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.
The bar association, however, emphasized 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,'"
the opinion states.
(Reporting by Joseph Ax)
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