A Hawaii Attorney Has An Ethical Duty To Return Inadvertently Produced Documents

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Throughout a case, the parties exchange numerous documents.  Responsible attorneys take precautions to review every document that is produced to the opposing party to ensure that documents that are not supposed to be seen by the opposing party, such as attorney client communications or work product, are not produced.  However, since lawyers are human, even the most careful law office can make mistakes.  The Hawaii Rules of Professional Conduct contemplate for an attorney’s inadvertent production of a privileged or confidential document, and governs the conduct of an attorney who has received the inadvertently produced document.  Hawaii Rule Professional Conduct 4.4(b) provides as follows:

(b)       A lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall:

  1. not read the document further than reasonably necessary to determine its privileged or confidential nature within the meaning of Rule 1.6 of these Rules, and shall not disseminate the document or information about its contents to anyone other than a supervisory lawyer and/or disinterested lawyer consulted to secure legal advice about the receiving lawyer’s compliance with this Rule;
  2. promptly notify the sending lawyer; and
  3. either reach agreement with the sending lawyer with respect to the disposition of the material or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.

Furthermore, the Comments to HRPC 4.4(b) states as follows:

[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. 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 and then either reach agreement with the sending attorney as to the disposition of the document or seek a ruling from the court as to whether the attorney-client privilege or work product protection was waived by the disclosure. This Rule incorporates Formal Opinion No. 39, issued by Hawaii’s Office of Disciplinary Counsel on April 26, 2001, as well as provisions suggested in “The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules,” P. Schaefer, Vol. 69 Maryland Law Review 195, 258-259 (2010). For purposes of this Rule, “document” includes e-mail or other electronic modes of transmission subject to being read out or put into readable form.

These rules are crystal clear and should be strictly followed.  If protected documents are inadvertently disclosed by a party’s attorney, the opposing attorney has the duty to refrain from reading the document and notify the disclosing party about the inadvertent disclosure.