Inadvertently Produced Privileged Email in Arbitration
You are a solo practitioner in Las Vegas representing a homeowner in a construction-defect arbitration against a contractor. Opposing counsel produces 4,200 pages of documents. At page 3,117, you find an email from the contractor's president to its general counsel, labeled 'Privileged and Confidential - Attorney Work Product,' discussing a repair estimate and stating, 'We knew the flashing was wrong before we billed the Hendersons; do not put this in the project file.' The production was not clawed back, and no privilege log was provided. Opposing counsel's paralegal calls you 30 minutes later and says the production was a mistake and demands you delete the email and all copies immediately. The arbitration hearing is in six weeks. Your client has already seen the email and asks why you are 'giving it back.'
1. What are your obligations under ABA Model Rule 4.4(b) and related duties upon receiving the inadvertently disclosed email?
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Under Model Rule 4.4(b), a lawyer who receives a document or ESI relating to the representation and knows or reasonably should know it was inadvertently sent must promptly notify the sender. The label 'Privileged and Confidential - Attorney Work Product' and the absence of a privilege log make it objectively likely that the email was produced by mistake. Notify opposing counsel in writing immediately and preserve the email and all copies; do not delete it, because deletion could destroy evidence and create spoliation issues. The Model Rules do not themselves require you to return the document, and the sender's demand to delete is not self-executing. But you should not use the email in the arbitration until the privilege claim is resolved. The safer course is to ask the arbitrator for a prompt ruling, requesting that the email be sequestered and that you be allowed to respond to the privilege claim. If the arbitrator rules that privilege was waived or that the email is not privileged, you may use it. If the arbitrator orders return, comply and document the return. Do not let the client's desire to keep the email override the need for a ruling.
2. How should you respond to the client's instruction to keep and use the email?
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The client decides the objectives of the representation, but the lawyer must comply with the rules of professional conduct and the law. Explain that the email may be privileged, that using it without a ruling could expose the client to sanctions, and that the arbitration could be delayed or the evidence excluded. Also explain that deleting the email now could be worse than keeping it. Then follow the client's decision on whether to contest the privilege claim, but do not use the email until the arbitrator resolves the claim. If the client insists on using it immediately, explain that you cannot do so consistently with Rule 4.4(b) and the duty of candor. If the client insists on deleting it, explain the spoliation risk and decline to assist. Get the client's decision in writing, preserve the original, and seek the arbitrator's guidance. The practical recommendation is to notify, preserve, and seek a ruling within the six-week window; that protects the client's case and your license.