Inadvertent disclosure takes many forms. Before the technological age, the secretary may have mistakenly placed the letter to the client in an envelope addressed to the adverse party’s lawyer. Similarly, a young associate may have neglected to remove a subfile of privileged materials prior to forwarding a box of documents in response to a disclosure demand. These blunders still occur today, but the opportunities for inadvertent disclosure have dramatically expanded through technology. We now have the errant fax, the misdirected e-mail, the pocket text message, and confidential information contained in metadata that is buried in electronic documents.
Rule 4.4
Prior to April 1, 2009, the effective date of the New York Rules of Professional Conduct, New York State law lacked a provision specifically governing inadvertent disclosure. The courts and ethics committees struggled with the problem and a body of decisional law and ethics opinions developed to address the problem. In 2006, we addressed the duties of the sender and recipient of inadvertent disclosure under these pronouncements. See “One Lawyer’s Loss Another Lawyer’s Victory?: Two Sides of Inadvertent Disclosure,” May 15, 2006 NYLJ 3. In light of several developments in the interim, we return to the subject again.
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