These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 Back to main menu

  Print This Leo
LEO NumTopicsSummary

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Adopting the reasoning of ABA LEO 368, the Bar concludes that a lawyer receiving "inadvertently transmitted confidential documents from opposing counsel or opposing counsel's client" must return the documents. Although prohibiting a lawyer from reading an inadvertently transmitted document based on "boilerplate" notices on fax cover pages would "violate reality," once the lawyer recognizes a document as confidential, the lawyer "has an ethical duty to notify opposing counsel, to honor opposing counsel's instructions about disposition of the document, and not to use the document in contravention of opposing counsel's instructions." Although some cases adopt a "doctrinaire rule that even an inadvertent transmission of confidential documents causes a loss of attorney-client privilege and permits the receiving lawyer to use the documents," the "rules of evidence do not . . . displace ethical standards governing lawyers.The Bar also endorses the approach of ABA LEO 382, which indicates that a lawyer may decline to return (and instead seek judicial guidance about) a privileged and confidential document the lawyer receives from someone other than the document's owner (such as a disgruntled employee, possible "whistleblower," etc.) -- explaining that the different approach reflects the inherently different situation from that addressed in ABA LEO 368, because the third party's transmission of the document was not inadvertent (although it might have been unauthorized), and because the document might reflect criminal conduct by its owner, or should have been already disclosed by the owner to the lawyer.

Copyright 2000, Thomas E. Spahn