You’re going through the packet of discovery materials provided by the Other Side in your big lawsuit when there it is: a letter written by a lawyer for your adversary laying out the Other Side’s litigation strategy. Or maybe it’s a series of internal memos about the lawyer’s investigation of the merits of the case.
Whatever the document, it’s important to your case, but it’s clear you were not supposed to see it. Somebody on the Other Side messed up when they sent it to you.
Since 1997, your duty has been clear under Virginia rules and guidelines: send the privileged information back or follow the sender’s instructions about what to do with it. You may not use it to help your client. Legal Ethics Opinion 1702 was the guiding document.
Since that time, however, the Supreme Court of Virginia tweaked the rules. Possibly anticipating disputes over whether the surprise documents are really privileged or not, the court said the recipient should either destroy the material or seal it up for review by the court. The new language is in Rule 4:1(b)(6)(ii).
There is no longer an obligation to send the stuff back to the Other Side, even if they ask for it, says the VSB’s Standing Committee on Legal Ethics.
The new approach is laid out in LEO 1871, made final on July 24:
A lawyer who receives confidential information by mistake during discovery (1) may review it to determine his obligations, (2) must notify the sender, (3) is not ethically obligated to ship it back, and (4) may sequester the information to see what the judge says about whether it can be used.
Outside of the discovery process, the requirements of LEO 1702 still apply, according to the new pronouncement.
No one submitted any comments on the proposed change, reported VSB Ethics Counsel James M. McCauley.