A common attorney scenario goes as follows: You, a mid-level associate, are racing the clock to get the documents you've painstakingly prepared sent to the team who needs them. You've been trading emails with various parties on the team in the same, increasingly messy thread all week. In a rush, you attach your document to the most recent email, hit the send button, breathe, and then gasp.

You've accidentally just sent confidential information to the wrong party.

Unfortunately, many attorneys may not know how to deal with receiving confidential information they shouldn't be privy to via email. A recent survey published by legal technology startup Winnieware suggests that lawyers in any given jurisdiction do no better than random guessing in understanding the current ethics guidelines around email use. Of the 66 attorneys polled, only 21 percent were able to correctly identify the appropriate ethical obligations in their state.

Respondents in New York, the most highly represented state in the survey, performed far below the national average, with only 7 percent of attorneys able to identify the appropriate ethics obligations. Forty percent of respondents from California, the next most represented group on the survey, were able to identify the correct ethical guideline.

Nevertheless, Winnieware's study found that even where attorneys did not know the specific rule they were expected to adhere to, over 90 percent of respondents indicated that they would behave ethically should they receive confidential information accidentally.

The ABA's stance on the ethics around receiving privileged information has changed somewhat over time. The original guidance on the issue back in 1992 urged attorneys who receive privileged information sent to them accidentally by opposing counsel to refrain from reading it, inform the sender and return or destroy the information. As technology practices developed, however, the ABA chose to reverse its original stance. Today's rules ask attorneys simply to inform the sender that they've received the message.

Winnieware co-founder Peter Norman attributes some of the confusion around these guidelines to the wide variance in ways that law firm cultures handle this practice. “Lawyers learn ethics rule by osmosis. They look at what the more senior lawyers in their firms are doing,” Norman said, adding that while attorneys take the Multistate Professional Responsibility Examination (MPRE) exam to pass the bar and must keep up with ethics-based CLE credits, much of that information isn't constantly reinforced in practice.

“I think the vast majority of what people regard as ethics come out of the day-to-day practice,” he said.

Winnieware conducted the study as part of their work on ReplyToSome, an application that can helps prevent organizations from accidentally passing along confidential information to the wrong recipient. Norman said the product was borne in part from his experience working on finance matters as part of a corporate practice.

While Norman was working as an associate, he noted that he and many of his colleagues were often producing and sending documents to multiple different parties “often under very little sleep, under a lot of stress and multitasking.” Norman and his colleagues, some of whom are also former attorneys, designed ReplyToSome to help attorneys as a failsafe to help attorneys ensure that their emails are being directed to the right parties.

Reply-all mishaps are something Norman expects to carry on well into the future. “It's something lawyers don't often want to talk about, because none of us want to talk about the possibility of making mistakes. But it's the kind of thing where it does continue to come up,” he said.