20070040 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20070040

Rules: 4–4.4

Transactions With Persons Other Than Clients

Respect for Rights of Third Persons

Subject: Discovery; Respect for Rights of Third Persons

Summary: handling of document inadvertently produced in discovery

QUESTION: Attorney represents a minority member of companies. Attorney contends an email produced by the Defendant to Attorney is not subject to attorney-client privilege because, as a member, the client is entitled to see all business records and communications of those companies. The email contains an inquiry from another member to a company attorney and the company attorney’s advice. Attorney questions whether Attorney may ethically use the email as evidence in the case.
ANSWER: If Attorney “knows or reasonably should know” that the email was provided inadvertently, Attorney has an obligation under the new version of Rule 4 dash–4.4(b), to promptly notify the sender that Attorney has the email. Attorney’s notice should provide the sender with a reasonable period of time to seek relief from the court before Attorney uses the email. If the sender does not seek or obtain relief from the court, Attorney may ethically use the email. If Attorney has no reason to know that the email was provided inadvertently, Attorney may ethically use it.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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