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QUESTION:

In response to your discovery request you receive from adverse counsel numerous emails. During your review of the emails you notice several are from adverse counsel to her client and contain privileged communications.

Regarding these emails you:

A. May read them because privilege was waived by adverse counsel’s act of producing them, only if production was inadvertent.

B. May read them because privilege was waived by adverse counsel’s act of producing them, regardless of whether production was inadvertent.

C. Are prohibited from reading them by M.R.P.C 4-4.4.

D. Are prohibited from reading them by Rule 56.01(b)(9)(A)(ii).

CORRECT ANSWER: Both C & D.

Are prohibited from reading them by M.R.P.C 4-4.4. and are prohibited from reading them by Rule 56.01(b)(9)(A)(ii).

In two recent orders the Missouri Supreme Court amended both of the mentioned rules to change the duties of lawyers who receive information which contains privileged communications. In an Order dated June 1, 2021, the Court amended COMMENT [3] to Rule 4-4.4. Prior to the change, lawyers who received inadvertently sent information where guided by their “professional judgment” when determining whether to voluntarily return the material. The prior COMMENT read: “Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 4-1.2 and 4-1.4.” The amended COMMENT now reads simply: “See also Rule 56.01(b)(9)(A)(ii).

That Rule, which was amended March 2, 2021 and is effective September 1. 2021 now includes the following new language:

Claiming Privilege or Protecting Trial Preparation Materials.

(A) Information produced.

(i) If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

(ii) An attorney who receives information that contains privileged communications involving an adverse or third party and who has reasonable cause to believe that the information was incorrectly received shall not read the information or, if he or she has begun to do so, shall stop reading it. The receiving attorney shall promptly notify the sending attorney of such receipt; promptly return the information to the sending attorney; sequester, delete, or destroy the information and any copies thereof; and take reasonable measures to assure that the information is inaccessible. A sending attorney who has been notified about information containing privileged communications has the obligation to preserve the information.

(B) The production of privileged or work-product protected documents, electronically stored information or other information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in the proceeding.

Attorneys in all states should carefully review their state’s applicable discovery rules and Rules of Professional Conduct to confirm their obligations and duties if they receive privileged material.

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