Mark Hinderks of Stinson, LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: I have just received an email from an opposing lawyer with whom I've been negotiating a deal. It looks like the lawyer may have inadvertently inserted my name (by autofill or simple mistake) rather than the contact person at his client, who has the same first name.

Before I realized the email was not meant for me, I read his recommendation that the client accept our pending relatively moderate offer to purchase assets of his client's company, given the problems he discusses in the email with the validity of certain patents relating to the assets involved. Having realized the communication was not meant for me and that it contains material information that could perhaps be considered privileged, I'm confused about my obligations. At one time, there was an ABA opinion that I think said I couldn't keep or use this information. Is that still the rule? Am I supposed to destroy or delete this now? Do I tell the sending lawyer that I received it? Can I and should I pass the info along to my client—it's pretty material to their deal and I feel like it is my duty in representing them to let them know of the issues with the patents so they do not get surprised/cheated in the deal.