You have asked for an opinion on the following facts. Recently an employee of your firm received a fax transmission which she believed to have been addressed to her from opposing counsel regarding a case that was about to be arbitrated in federal court. After reading the document, the employee realized that the fax had been sent to her inadvertently. The fax was meant to go to opposing counsel's chief corporate attorney who happened to have the same first name as your employee. In addition, the faxed document lacked a caveat informing the reader of a possible privilege or an admonition to return said document had it been received by mistake or error. Based upon this Committee's opinion 94-3, you have decided not to return the document and concluded based upon your research that the document and its contents are not privileged. You note that the document contains information which leads you to believe that there has been an egregious violation of the Rules of Professional Conduct by opposing counsel, and ask 1) if you have an obligation to report opposing counsel's conduct to an appropriate disciplinary authority; 2) does such a putative violation waive possible attorney-client confidentiality and 3) do you as the inquirer have a duty to report the alleged violation of Rule 8.3 to the assigning judge on the case?
Under Rule 8.3a you have a duty to report conduct to the appropriate professional authority if it, raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects....
You indicate in your inquiry that the conduct you have discovered is clear and egregious
and if you believe it meets the standard of Rule 8.3a, as such it must be reported to the Disciplinary Board subject to your receiving consent from your client to do so, since information regarding your client's case must obviously be disclosed in order to report the matter. In obtaining such consent from your client, you must be sure to advise your client of the potential impact such reporting and disclosure may have on the case, including protracting it as well as affecting the chances of favorable settlement, should that be an issue. Should your client refuse to give permission to disclose confidential information, then you cannot report the misconduct to the Disciplinary Board as the duty to report under Rule 8.3a is tempered by your duty of confidentiality under Rule 1.6. (See
Rule 8.3c). This conclusion was reached by this Committee previously in Opinion 93-28
The Committee is limited in its charge to rendering advice on ethical as opposed to substantive law issues. For purposes of clarity, the Committee nevertheless does note that the ethical doctrine of confidentiality is quite broad, and is distinct from the substantive evidentiary rule of attorney/client privilege which is much more narrow in its application.
If you are questioning whether the circumstances regarding the mistaken transmittal of the fax to your office waives attorney/client confidentiality for your opposing counsel and adverse party, you should be aware that you do not have any obligation to protect that attorney/client confidentiality. Although it may seem harsh in application, your duty is to your client. Opposing counsel's mistake, which may impact severely on his/her relationship with his/her own client is not a concern that is in any way superior or even equal with your obligation to zealously represent your client. As such, whether or not the fax your employee received had any type of notice on it regarding confidentiality or privilege is not relevant to the analysis of your duties and rights in this situation as regards your ethical obligations to your client.
Finally, if the misconduct relates to the substance of the case, it may be appropriate to report the misconduct to the court hearing the case, but depending on the specifics of the misconduct, this may not be a mandatory duty under the Rules of Professional Conduct. However, as with the Disciplinary Board, the reporting should be with the informed consent of your client.