RULE 4.5 INADVERTENT TRANSMISSION

Obsolete Date: 3/1/2016

(a) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know the document was inadvertently sent shall promptly notify the sender.

(b) A lawyer who receives a document under the circumstances creating a duty under this rule does not violate Rule 1.2 or Rule 1.4 by not communicating to or consulting with the client regarding the receipt or the return of the document.

Comment

[1] This Rule recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers, or by third parties. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, "document" includes e-mail or other electronic modes of transportation subject to being read or put into readable form.

[2] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

Reference: Minutes of the Joint Committee on Attorney Standards on 08/06/04, 09/24/04, 06/14/05.