June 20, 2018 – It’s easy to figure out what to do if you’re inadvertently sent documents that appear to be privileged (see SCR 20:4.4). But what should you do if your client deliberately gives you privileged documents that were taken without authorization? Does SCR 20:4.4 apply?

Question

We were retained to represent an employee who was recently discharged in a suit alleging wrongful termination based upon the whistle-blowing activities.

The client brought us a thumb drives which, he stated, contained important documents he had downloaded before his last day. We took a look, and saw that several of the documents are communications with the employer’s in-house counsel and appear to be privileged. The client said he took these documents without the permission of the employer.

I looked through the Supreme Court Rules to try to figure out what to do, and the closest I could come was SCR 20:4.4(c), but that rule deals with documents that are inadvertently produced. Here, the documents were intentionally given to us, and taken without permission. Nobody produced anything inadvertently.

What should I do?

Answer

This situation was addressed in a recent unpublished opinion from New Jersey, Sanchez v. Maquet Getinge Grp.¹

The employee in question in that case was a high-level compliance officer whose job at a pharmaceutical company was terminated. The employee gave to his lawyers documents that the employee “burned” before leaving the company. The employee had signed a confidentiality agreement and agreed to not take any document. Nonetheless, after being fired, the employee gave his lawyers the “burned” documents, some of which were privileged.

Nine months later, the employee’s firm produced some of the documents in response to a discovery request. In response to the subsequent disqualification motion, the firm argued that the employer’s lawyer had waived privilege with respect to those documents, but to no avail.

In granting the motion to disqualify, the court noted New Jersey RPC 4.4(b):²

R.P.C. 4.4(b) , which states, "[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender." … [T]here is no denying that there was "reasonable cause to believe" that the documents were privileged. The documents were quite clearly labeled as attorney-client privileged communications and expressly involved MAQUET's General Counsel.

Wisconsin’s SCR 20:4.4(c) contains similar language.

This case is another example of a court applying the obligations under a rule that sets forth responsibilities when in receipt of an inadvertently sent document to a situation where a lawyer finds themselves in receipt of documents that were obtained without authorization.³

While ABA Comment [2] to SCR 20:4.4 notes that the rule does not apply to situations where the lawyer knows that someone has given the lawyer a document obtained without authorization, courts regularly expect lawyers in receipt of such documents to notify opposing parties.

Courts will also sometimes find that a lawyer who receives privileged information obtained without authorization violates 4.4(a) if they retain the documents and fail to notify the appropriate party.⁴

As a risk management policy, lawyers who receive documents that were obtained without authorization should strongly consider insisting that the client permit disclosure to the affected party.

Endnotes

¹ 2018 BL 182268, N.J. Super. Ct. App. Div., A-4994-15T4.

² While New Jersey’s rule expressly deals with receipt of information without authority, the court’s opinion interestingly does not mention that portion of the rule.

³ See, e.g. Burt Hill v. Hassan, 2010 BL 19879; Merits Incentives LLC v. Eighth Judicial District Court, 262 P.3d 720 (Nev. 2011).

⁴ See, e.g. In re Eisenstein, 2016 BL 107979, Mo. No. SC 95331.