Welcome to 2024 y’all. Lawyers spend an inordinate (but not actually unduly excessive) amount of time worried about making mistakes that involve sending the wrong information to the wrong people.
For lawyers in most U.S. jurisdictions, the ethics rules do not provide truly comprehensive guidance about how to fix such a mistake because the ethics rules don’t provide definitive guidance on what a lawyer on the receiving end of the wrong information has to do. (Now, if the mistake occurs in connection with discovery in a lawsuit, then most everywhere you’ve got rules of civil procedure you can use with more guidance.)
But in Tennessee, we’ve gone beyond the Model Rule template for addressing an inadvertent disclosure of confidential or privileged information, and we’ve extended the same rule to cover the purposeful but unauthorized disclosure of such information.
Our RPC 4.4(b) reads as follows:
A lawyer who receives information (including, but not limited to, a document or electronically stored information) relating to the representation of the lawyer’s client that the lawyer knows or reasonably should know is protected by RPC 1.6 (including information protected by the attorney-client privilege or the work-product rule) and has been disclosed to the lawyer inadvertently or by a person not authorized to disclose such information to the lawyer, shall:
(1) immediately terminate review or use of the information;
(2) notify the person, or the person’s lawyer if communication with the person is prohibited by RPC 4.2, of the inadvertent or unauthorized disclosure; and
(3) abide by that person’s or lawyer’s instructions with respect to disposition of written information or refrain from using the written information until obtaining a definitive ruling on the proper disposition from a court with appropriate jurisdiction.
So, in short form it means, if you are a lawyer and you receive something that relates in some form or fashion to your representation of a client and what you received contains someone else’s privileged or confidential information and you at least reasonably ought to know that they didn’t mean to send it to you or that it came to you from someone who had no right to have it in the first place, then you have to do the “stop, drop, and roll” kind of clear instructions set put above.
Now, why am I telling you all of this? Because dear reader, a very recent case in Tennessee helps demonstrate that despite how “good” this version of this rule is, it only works if you work it. That case, Masquerade Fundraising, Inc. v. Horne, also makes the point in the title of this post: you really only realistically ever get one shot at unringing a bell.
In Masquerade Fundraising, the lawyer for the defendants would appear to have mistakenly included email correspondence with his own client as an exhibit to a court filing. If immediately thereafter, that lawyer had notified the lawyer for the plaintiff of the error, then things likely would have played out differently assuming that the lawyer for the plaintiff would have then complied with RPC 4.4(b). For that matter, if there had been even some time that passed after that event, the plaintiff’s lawyer might have, on their own, questioned the circumstances and provided notification under RPC 4.4(b) themselves.
But none of that happened because, according to the opinion, the lawyer for the defendants made another court filing in a matter of days that again attached the same email with their client as an exhibit. In addition to that that, questions were asked at a deposition about the contents of the email in question and that did not prompt the lawyer for the defendants to say anything about the production having been inadvertently made.
In those circumstances, it is an entirely unsurprising result that the court ruled that the production amounted to a waiver of the privilege and, correctly, the court limited the scope of the privilege as extending only to that document and not other communications.
Over the years, I have represented many lawyers finding themselves on either side of this kind of inadvertent disclosure situation. There are two other aspects of this case that should be notable for all lawyers (since you never can know when you might be on one or the other side).
This situation was not entirely free from peril for the receiving lawyer as the opinion indicates that the sending lawyer did file a disciplinary complaint against the receiving lawyer for not complying with RPC 4,4(b). That complaint, according to the opinion, was dismissed, but that does not mean it was not an unpleasant experience to go through for that lawyer.
The other noteworthy aspect is that in almost any circumstances in which these kinds of situations have to be litigated, the attorneys involved have to be very careful about public discussions of the contents of the communication about which the impact of the disclosure is being litigated. Typically, it is the party that received the materials that has the path requiring more caution. For example, our Comment [3] explains: “In making any disclosure to a court to obtain a ruling regarding disposition of the information, any disclosure of the information should be made in a manner that limits access to the information to the tribunal, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”
But in this instance the opinion describes the litigation strategy employed by the sending lawyer — who admittedly not only had to litigate the attempt to claw back the documents but also defend a motion to disqualify alleging that the lawyer was engaged in wrongdoing because the accidentally disclosed documents painted an entirely different picture of the conduct of the lawyer’s clients — as if it were a masterclass in “burning the village to save it.”
As the [c]ourt views the issue, the steps [taken] after the initial disclosure, or even the second disclosure, is the problem that the [c]ourt cannot ignore. Counsel for Defendants not only affirmatively puts the email into the [c]ourt’s record for a third and fourth time, but also discusses the substance and contents of the email at length in its briefs pertaining to these motions as well as the additional issues that have resulted in the first two disclosures. Additionally, the affidavits of [Patrick] discuss the contents of the alleged privileged communication. Any of these actions alone could result in a waiver of the privilege. The [c]ourt recognizes that one cannot defend against the allegations in the Motion to Disqualify that the email in question evidences fraud without discussing the contents of that email. However, there are mechanisms to respond to those allegations while also preserving the attorney-client privilege. Specifically, counsel could have filed a motion for a protective order or a motion for leave to file its brief under seal. Counsel could have also initially motioned for a Rule 104 hearing about the existence of privilege and motioned to seal the original and have any references to it be stricken from the record. At any rate, counsel for Defendants has proceeded in this case without taking steps to further preserve the information. Counsel for Defendants subsequent actions after filing the Motion in Limine cannot be said to be reasonable steps to rectify the error when those actions could independently operate as a waiver of the privilege.