Rethinking Lawyer Ethics to Allow the Rules of Evidence, Rules of Civil Procedure, and Private Agreements to Control Ethical Obligations Involving Inadvertent Disclosures

Abstract

This Article seeks to align the rules of ethics with the rules of evidence, rules of civil procedure, and private agreements in confronting the vexing issue of inadvertent disclosures. It proposes a clear-eyed modification of Model Rule of Professional Conduct 4.4(b) to require a lawyer to use an inadvertent disclosure of confidential or privileged information unless prohibited by the rules of evidence, rules of civil procedure, or private agreement. This inadvertent-disclosure proposal fairly balances the interests of the justice system, civility in the legal profession, and protection of clients.

Keywords: inadvertent disclosure, 4.4(b), 26(b)(5)(B), 502(b), attorney-client privilege, confidential, rules of civil procedure, rules of evidence, model rules of professional conduct, professional responsibility, legal profession, legal ethics, judges, courts, litigation, ethics, judiciary, FRCP, FRE, MRPC

JEL Classification: K10, K19, K20, K30, K40, K41, K42, K49