Inadvertently Disclosed Information – Non-Privileged but Confidential

As legal counsel, what do you do when you receive communication from an opposing party that was not intended for you? Does it matter if the contents of the communication are confidential as opposed to privileged? Does it make a difference if the lawyer receives the inadvertent communication or if the client receives the communication?

With the advance of technology and the ease by which we can send emails and other forms of communication, legal professionals must consider these questions before finding themselves in such a situation.

Example Scenario

Suppose a law firm represents company X that loaned money to company Y. For various reasons, company X alleges that company Y breached the conditions of the subject loan and that the amounts due and owing thereunder are immediately payable.

Following multiple unanswered demands, the client instructs the firm to seek a Bankruptcy Order against company Y for, failing to meet its liabilities generally as they fell due (the “Bankruptcy Motion”).

Not long after, the client receives an email from the chief financial officer of company Y (the “Confidential Email”). Without realizing the communication is not intended for them, the client reads the Confidential Email and the attached spreadsheets, which appear to show an internal plan for company Y to wind down its operations, with an outline of the expenses required to do so –  including payment of significant severance to a number of its officers. In addition, there is no indication that company Y intends to satisfy its indebtedness to company X in full or at all.

An hour after the client receives the confidential email, the chief financial officer for company Y sends a follow-up email advising the client that the communication was sent to them in error and requests it be deleted.

As the Confidential Email contained highly relevant information to the Bankruptcy Motion, fundamentally establishing the fact that company Y is insolvent, the client refuses to comply with the request and instead forwards it to their legal counsel for review and consideration.

Guiding Principles for Inadvertent Communications

In this example, what are the law firm’s legal and ethical obligations with respect to the review and potential use of this inadvertent communication?

The Codes of Professional Conduct for western Canadian provinces all contain directives for how to handle inadvertent communications as outlined below.

British Columbia

Section 7.2-10 of the Code of Professional Conduct for British Columbia (the “B.C. Code”) reads:

A lawyer who has access to or comes into possession of a document that the lawyer has reasonable grounds to believe belongs to or is intended for an opposing party and was not intended for the lawyer to see, must:

  1. in the case of a paper document, return it unread and uncopied to the party to whom it belongs,
  2. in the case of an electronic document, delete it unread and uncopied and advise the party to whom it belongs that that was done, or
  3. if the lawyer reads part or all of the document before realizing that it was not intended for him or her, cease reading the document and promptly return it or delete it, uncopied, to the party to whom it belongs, advising that party:
  4. of the extent to which the lawyer is aware of the contents, and
  5. what use the lawyer intends to make of the contents of the document.

Manitoba and Saskatchewan

Section 7.2-10 of both the Code of Professional Conduct for Manitoba (the “MB Code”) and the Code of Professional Conduct for Saskatchewan (the “SK Code”) reads:

A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

Commentary

  1. 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 notify the sender promptly in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been lost. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, “document” includes e-mail or other electronic modes of transmission subject to being read or put into readable form.
  2. Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.

Alberta

Section 7.2-13 of the Code of Professional Conduct for Alberta (the “AB Code”) reads:

A lawyer who comes into possession of a privileged communication of an opposing party must not make use of it and must immediately advise the opposing lawyer or opposing party.

Commentary

  1. Lawyers may receive privileged communications from opposing counsel or parties through inadvertence. On occasion, lawyers receive privileged communications of opposing parties as the result of the impropriety of their own clients or from third party informants.
  2. Immediately upon realizing that the communication is a privileged communication of another party, the lawyer shall not continue to read the communication and must bring it to the attention of opposing counsel, then return or destroy it, without copies having been made. Knowledge that a communication is not intended for the lawyer receiving it will be imputed if, under the circumstances, it would have been unreasonable for the lawyer to come to any other conclusion.
  3. A lawyer who innocently reads all or a portion of a privileged communication before becoming aware of its nature must advise opposing counsel of the lawyer’s possession of the communication and the extent to which the communication has been reviewed.
  4. In the event there is a genuine dispute over the nature of the communication, it shall be permissible for the receiving lawyer to secure the communication, pending resolution of the dispute. The issue of whether or to what extent the communication may be copied or its contents disclosed or used must be resolved by agreement or by the court. In the meantime, it is improper to use the communication or disclose its contents in any manner.
  5. This rule does not otherwise address the legal duties of a lawyer who has inadvertently or inappropriately received privileged communications or the remedies available to the party who seeks to assert privilege over the communication.

What’s a lawyer to do?

For the purpose of our example scenario, let’s assume that the law firm is based in B.C.

It is clear the Confidential Email was not intended to be sent to company X and that it was not intended for the law office to see. On that basis and in strict compliance with s. 7.2-10 of the B.C. Code, the law office is required to “delete it unread and uncopied.”

However, as a non-lawyer, company X is not under the same obligation. In addition, company X already reviewed the Confidential Email and its attachments, and therefore its contents are in the direct knowledge of the client. Is the client now required to forget the highly relevant information and not attempt to rely on it in support of the Bankruptcy Motion?

As s. 7.2-10(c)(ii) of the B.C. Code concerns a lawyer making use of the inadvertently disclosed information, and to better understand what use could be made of the Confidential Email, the law firm should review the annotations to the B.C. Code and the corresponding ethics committee decisions. We note the discussion within most of these decisions relate to the inadvertent disclosure of privileged information, not purely confidential information. There is very little commentary on the topic of inadvertent disclosure of confidential information. In such circumstances, the law firm should consult a practice advisor from their jurisdictions law society.

We note that s. 7.2-10 of the B.C. Code requires the firm to delete the Confidential Email but does not prevent the firm from using the information. In other words, the British Columbia counsel is not permitted to possess the Confidential Email, but it may make use of the information contained in other ways. The firm may request the disclosure of the document as it is relevant to the proceedings or the client may summarize the contents of the Confidential Email in an affidavit sworn by the client. These potential courses of action do not run afoul of s. 7.2-10 of the B.C. Code.

Based on the commentary and the ethics committee decisions, section 7.2-10 of the B.C. Code was largely designed to protect solicitor-client communication and to avoid potential waiver as a result of inadvertent disclosure. However, the language is broad enough to capture all inadvertent disclosure, even where the client inadvertently receives confidential information.

If a lawyer finds themselves in a similar situation, they must look at the scope of the relevant provincial Code of Professional Conduct for guidance on how to address the disclosure of confidential, non-privileged information. There may be creative solutions available and a conversation with a practice advisor may assist in determining how to proceed.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.