Unsolicited Or Inadvertent Communications: As Complex As Litigation Itself
How should ‘receiving’ attorneys respond?
Attorneys must often navigate the minefield of unsolicited or inadvertent communications. These can be subject to attorney-client privilege, be confidential, or implicate constitutional rights.
To help legal practitioners exercise the proper care, Practising Law Institute offers the on-demand CLE program Dealing with Unsolicited Receipt of Confidential or Privileged Information: How Should a “Receiving” Attorney Respond? The following summarizes a few highlights.
How these communications are handled “all depends on context and content, literally,” said David C. Shonka, a partner with Redgrave LLP in Washington, D.C., who formerly served in-house with the Federal Trade Commission. “The ethics rules are not hard and fast, so you should seek additional guidance from the law of your jurisdiction.”
These communications may come from whistleblowers who believe their company is doing something fraudulent. They may come from disgruntled employees or get turned over inadvertently to fulfill a discovery request.
On the Civil Side
According to Kathleen A. McGee, a partner with Lowenstein Sandler LLP in New York City, if you receive inadvertent communications, “You need to consider the ethics of taking a look at something you have a reasonable suspicion you shouldn’t have received.”
Because of the nature of electronic communications, McGee says, attempts to claw back information are common. States usually have guidance for reaching out to opposing counsel. Of course, receiving attorneys also have an obligation to their clients.
“If you think it’s too prejudicial to your client to not use in some way you can seek some kind of agreement,” McGee explains, advising to ask about ground rules for claw-back provisions at the outset. “If you ask first, you can have more than just an honor system. You can have an agreement.”
On the Criminal Side
In the criminal context, the question is often whether use of the information violates constitutional rights.
Elizabeth Roper — the chief of the Cybercrime and Identity Theft Bureau for the New York County District Attorney’s Office at the time of this program’s recording — places unsolicited information in two buckets: “Either we get it proactively from a witness or whistleblower, or in the cyber context, from a security researcher.”
Such disclosures are deliberate, which leads to the question of whether they constitute private or state action.
The recent case U.S. v. Phillips (9th Cir. Apr. 29, 2022) — one of a few cases discussed in the program — deals with this issue.
In the case, a woman accessed the laptop of her ex-fiancée to show a police detective evidence of child pornography. The detective asked her to show him only images she had already accessed, independently. The court rejected the defense’s efforts to suppress.
The detective in Phillips was careful, but the question becomes, when does a request for more information render something a state action?
The holding is “consistent with our practices,” says Roper. “When a private citizen does it, it’s not state action and the Fourth Amendment is not triggered. Using it to build the case is appropriate.”
But if law enforcement asks the private citizen to get more, the court is likely to limit its use to the original information, Roper explains.
Inadvertent disclosures are simpler.
“If we had over-production in response to a subpoena,” Roper says, “it might include information beyond the scope, and we have a legal obligation to make sure we don’t use it.”
The Metadata Trap
The seminar also addresses metadata. In discovery, many terabytes of information can be turned over. The metadata could feature someone seeking the advice of an attorney.
“The answer is, don’t turn things over with metadata,” says Ronald J. Hedges, senior counsel with Dentons in New York. “This is more a tech question than anything else. Understand what you’re producing and the form you’re producing it in.”
McGee advises attorneys to make sure they understand their information technology systems. If you don’t, “you could be really putting yourself in a compromised position.”
Shonka says he sees “little excuse these days for people not knowing there is metadata out there.”
Looking to learn more? Check out the full course on-demand.
Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.
