Transactional Lawyers and Inadvertent Disclosure
32 Pages Posted: 14 Jun 2014 Last revised: 3 Dec 2015
Date Written: August 12, 2011
The problems associated with inadvertent disclosure are often thought to be unique to litigators. The American Bar Association and most states seem to subscribe to that view. Model Rule of Professional Conduct 4.4(b) and equivalent rules in a majority of states provide that if a confidential document is inadvertently disclosed, the receiving lawyer is only obligated to notify the lawyer who made the mistake. Whether the receiving lawyer must return the document or take other steps, the Rule’s comment provides, “is a matter of law beyond the scope of these Rules.” In other words, if the disclosing lawyer wants the document returned, the lawyer should go to court and seek a ruling on the legal issue. A transactional lawyer is unlikely to do this, of course, because there is no pending litigation and thus no court from which to seek a ruling.
The bottom line is that in most jurisdictions, professional conduct rules provide no real protection to transactional lawyers who inadvertently disclose confidential information. Why not? Perhaps rule makers believe that you “can’t unring the bell,” so a rule requiring the inadvertently disclosed document’s return would be of little value. They may think such relief is only needed in litigation to prevent the document being introduced into evidence, and a court can provide that relief by ruling on the issue of privilege waiver. Transactional lawyers, rule makers may believe, have no need for such a remedy because they do not care about admissibility at trial. Further, rule makers may be reticent to impose obligations (beyond notice) on innocent recipients of inadvertent disclosures, opting instead to make the careless sending lawyer bear the consequences of the mistake.
This article refutes these misconceptions currently embodied in the professional conduct rules of most jurisdictions. Transactional lawyers need an inadvertent disclosure solution, even if it is one they create themselves on an ad hoc basis.
Keywords: inadvertent disclosure, transactional lawyers
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