New York City Bar Formal Opinion 2012-1

Topic: bligations Upon Receiving a Document Not Intended for the Recipient

A lawyer who receives a misdirected communication must notify the sender but does not have to destroy or return it.

The New York City Bar Committee on Professional Ethics issued Formal Opinion 2012-01 which contemplates the ethical obligations of a lawyer who receives a misdirected document.

Whether by email, fax, regular mail, voice mail, or other means, a lawyer who receives a document that the lawyer knows or reasonably should know was inadvertently sent should promptly notify the sender in accordance with Rule 4.4(b) of the New York Rules of Professional Conduct. The rule is applicable regardless of the sender. The lawyer does not have any duty under the rules with regard to return, destruction, or retention of the document.

The Committee added, however, that the rule applies only to items “inadvertently sent”. Thus, the rule would not apply where a third party obtains a document improperly and then purposefully transmits it to the lawyer. In addition, metadata sent to a lawyer raises different ethical considerations.

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