Your inquiry states that you represent plaintiff in a matter which is pending in an administrative proceeding, and may ultimately lead to litigation. You inquired of your adversary what the status was of the administrative claim by telephone. You were advised that an attorney would contact you the next day. On the next day, you did receive a fax from that attorney for your adversary, directed to you. After reading the fax, you determined that it was a report prepared in anticipation of litigation (the report made an assessment of liability, analyzed a previous investigation, and valued the claim for settlement purposes).
You advised your adversary that you had received the fax; subsequently, counsel for your adversary asserted that the document sent to you was subject to the attorney-client privilege and has asserted that not returning the faxed copy of it would be an "ethical violation."
You have addressed four questions to us:
1. "Whether the report which was inadvertently faxed to my attention by an [adverse counsel] constitutes a waiver of the attorney-client privilege?"
This is a legal question and beyond the purview of this committee.
2. "Assuming there is a waiver, may the contents of the report be used at the time of trial?"
This is a legal question, and beyond the purview of this committee, except as reflected in answer to your question #3, and the discussion below.3. "Assuming there is no waiver, must I return the original and all copies of the report without keeping a copy for my file?"
Our opinion is that there is no violation of the Rules of Professional Guidance to decline to return the document. Similarly, there is no ethical inhibition on your seeking to admit the document at time of trial.
4. "Have I committed an ethical violation by not immediately complying with counsel's demand?"
Our opinion is that you have not committed an ethical violation in your conduct.
The Rules of Professional Conduct do not include your refusal to return this document as a breach of any ethical duty. The previous opinions of this committee, Inquiries 91-19 and 89-13, are consistent with your actions to date.
There are a number of reported decisions relating to the circumstances under which documents are "inadvertently" furnished to the opposition, and the courts have established guidelines for requiring the return of the documents. See, for example, Lois Sportswear U.S.A Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985), Baxter Travenol Laboratories, Inc. v. Abbott Laboratories, 117 F.R.D. 119 (N.D. Ill. 1987). Significantly, in neither of those opinions is there any suggestion that he actions of counsel in refusing (absent court order) to return the "inadvertently" disclosed documents was unethical. Rather, the courts evaluated the conduct of the party who "inadvertently" produced the document. N.L.R.B. v. Monfort Inc., F.2d (10th Cir. 1993) found no obligation to return a work product document received without fraud or misconduct.
Aerojet-General Corp. v. Tra, Calif. Ct. App., 1st Dist. No. A05-1580-OP, 9-14-93, also held that an attorney could not be sanctioned after receiving a document and using it to his client's advantage. Decisions by Ethics Boards in Ohio and Maryland are consistent with our position. See Ohio Supreme Court Board of Commissioners on Grievances and Discipline, Opinion 93-11 (1993), and Maryland Ethics Opinion 89-53 (1989), cited therein.
You noted the ABA formal opinion 92-368. Opinion 92-368 is based on the assumption that the documents were "on their face" privileged or subject to work product and that the documents were received "under circumstances when it is clear they were not intended for the receiving lawyer." Those are not the facts here. In your instance, you had to read the document before you could determine whether it was "privileged" or "work product."
Further, the circumstances under which you received the document, made it appear that they were intended for you. This includes the fact that it was directed to you personally, and that you had been notified that counsel for your adversary would contact you.
Thus, your inquiry is factually distinguishable from the assumptions which underline 92-368.
More generally, Opinion 92-368 does not persuade the majority of this committee that failure to follow its guidelines is unethical behavior. In some circumstances (not present here) it may be preferable to return a requested document. It does not follow that failure to return such a document would be in violation of the Rules of Professional Conduct.
The Ohio Board, cited above, was similarly "unpersuaded" by Opinion 92-368.